2. B

[Judgment of the court below]

(a) Each disposition imposing KRW 8,420,140 on Plaintiff A for the business year 2018; KRW 27,702,320 for the first year value-added tax for the business year 2018; KRW 5,279,280 for the wage and salary income of June 2018; and KRW 5,330,980 for the wage and salary income of June 2018; and KRW 5,330 for the wage and salary income of May 2018;

B. Each disposition of imposition of KRW 4,210,070, KRW 13,851,150, and KRW 2,639,640, and KRW 2,665, and KRW 480, imposed on Plaintiff B for the business year 2018, KRW 13,851,150, and KRW 2,639,640, and KRW 2,665, and 200, respectively, for the month 2018

Each cancellation shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

A. C Co., Ltd. (hereinafter referred to as “foreign corporation”) was a corporation established for the purpose of manufacturing automation equipment in Kimhae-siD on December 22, 199 and closed on September 21, 2018.

However, since 2011, Plaintiff A and Plaintiff B were listed as shareholders holding 30% shares of Non-Party A and 15% shares of Non-Party A as follows.

A person shall be appointed.

B. As of November 6, 2018, the non-party corporation failed to pay taxes of 155,755,870 won, including the second half-year value-added tax, etc. as of November 6, 2018. The Defendant deemed that the Plaintiffs were oligopolistic stockholders of a non-party corporation under Article 39 Subparag. 2 of the Framework Act on National Taxes, and thus, the Plaintiffs designated them as the second taxpayer on November 6, 2018 and imposed and notified corporate tax, etc. according to the Plaintiffs’ equity shares (hereinafter “instant disposition”).

(unit: %) per cent, won

A person shall be appointed.

C. On April 29, 2019, the Plaintiffs appealed and filed a request for a trial with the Tax Tribunal. However, on April 29, 2019, the Plaintiffs rendered a judgment dismissing the Plaintiffs’ claim.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 4 (including paper numbers; hereinafter the same shall apply), Eul evidence Nos. 1, 2 and 3, the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiffs' assertion

The actual owner of the non-party corporation is F, and the plaintiffs merely lent the name to F, and there is no actual fact that they participated in the management of the non-party corporation or hold shares. The disposition of this case that the plaintiffs are the secondary taxpayer is unlawful.

B. Determination

(1) With respect to whether a person is an oligopolistic shareholder, the tax authority shall be deemed to have proved the response if it submits data which can be deemed an oligopolistic shareholder by the register of shareholders, the statement of stock transfer, or the certified transcript of corporate register, etc., and the person who intends to be exempted from liability as the secondary taxpayer shall prove the fact that he/she is unable to become the secondary taxpayer because he/she stolen the name of the shareholder or was merely a shareholder in the form, not a substantial shareholder (see Supreme Court Decision 2003Du1615, Jul. 9, 2004). However, if only a company is registered as an executive of the company and did not participate in the management of the company or did not receive wages or dividends as a shareholder, the shareholder is merely a shareholder in the form of lending the name of the shareholder, not only the actual shareholder but also does not constitute the secondary taxpayer (see Supreme Court Decision 2009Du7578, Feb. 25, 2010).

(2) In this case, the following circumstances acknowledged based on the overall purport of evidence Nos. 5 through 11, witness H, I, and G’s testimony and arguments, i.e., Plaintiff A’s 1’s wife, Plaintiff B’s F’s ties, and F’s ties. The Plaintiffs were in a family relationship where it is difficult for the F to refuse to request the name lending; ② the Plaintiffs were present at a general meeting of shareholders or the board of directors; there is no evidence to acknowledge that the Plaintiffs participated or was paid dividends; ③ the F was the representative of the non-party corporation; ③ the F was acting as the representative of the non-party corporation; on the premise that the F was the actual representative of the non-party corporation; ③ the F was not paid wages and retirement allowances to employees on the premise that the F was the actual representative of the non-party corporation (this Court Decision 2018Da3493); the Plaintiffs were not in the form of a shareholder’s right to use the shares under the name of the non-party corporation, and ④ the Plaintiffs were not in the form of the shareholders.

(3) Therefore, the instant disposition based on the premise that the Plaintiffs are oligopolistic shareholders is unlawful.

3. Conclusion

If so, the plaintiffs' claims shall be accepted with due reason, and it is so decided as per Disposition.