실질소유주의 명의가 아닌 차명으로 등재되었다는 등의 사정이 있는 경우에는 명의만으로 주주에 해당한다고 볼 수는 없음[국패]
Daejeon District Court 2013Guhap170 ( October 30, 2013)
Where there are circumstances such as registration in a name other than the name of the actual owner, it shall not be deemed that the name alone constitutes a shareholder.
The plaintiff is not the actual shareholder of the shares of this case in the case of the most transfer without permission, such as transfer of the name to another account because he had never known the process of transferring shares at all, and the disposition of this case must be revoked as it is unlawful.
2013Nu1797 Revocation of revocation of designation as the secondary taxpayer
GuAA
Daejeon Head of the District Tax Office
Daejeon District Court Decision 2013Guhap170 Decided October 30, 2013
April 24, 2014
May 15, 2014
1. The defendant's appeal is dismissed.
2. The costs of appeal shall be borne by the Defendant.
1. Purport of claim
On December 27, 2011, the Defendant designated the Plaintiff as the secondary taxpayer of BB, and revoked the disposition of imposition of the value-added tax for the business year 2009, the corporate tax for the business year 2010, the value-added tax for the second period of 2010, the OOOO for the second period of 2010, the value-added tax for the second period of 2010, the OOO for the second period of 201, and the value-added tax for the first period of 201.
2. Purport of appeal
The judgment of the first instance is revoked. The plaintiff's claim is dismissed.
1. Details of the disposition;
The court's explanation on this part is the same as the corresponding column of the reasoning of the judgment of the court of first instance, and thus, it is citing this in accordance with the main sentence of Article 8 (2) of the Administrative Litigation Act.
2. Whether the instant disposition is lawful
A. Summary of the plaintiff's assertion
1) The Plaintiff did not have invested in the instant company and did not receive dividends as a shareholder. In addition, even though the Plaintiff was registered as the representative director, etc. of the instant company, the Plaintiff did not have participated in the management and did not have received benefits.
2) When ECC and EDR fail to pay corporate tax and value-added tax due to a lack of business operation, this company’s actual operation of this case’s company, and EE, E, E, and EF, etc., the company most transfer its stocks to the Plaintiff and registered the Plaintiff as a shareholder of the company of this case in order to avoid liability due to oligopolistic shareholders.
3) Therefore, the disposition of this case where the Plaintiff was designated as a secondary taxpayer and imposed corporate tax, etc. on the Plaintiff is unlawful, since the Plaintiff is merely a shareholder in the form of the instant company.
B. Relevant statutes
The entries in the attached Table-related statutes are as follows.
C. Determination
1) An oligopolistic shareholder liable for secondary tax liability under Article 39(1)2(c) of the Framework Act on National Taxes is sufficient if he/she is a spouse of a person falling under items (a) and (b) of the same subparagraph or a lineal ascendant or descendant living with him/her, and does not need to be a person who actually controls the management of a corporation by participating in the management of the corporation or exercises the rights in excess of 50/100 of the total number of outstanding stocks of the corporation. Meanwhile, whether he/she is an oligopolistic shareholder shall be determined by whether he/she is a member of a group of ownership of a majority of the stocks. In detail, even if he/she does not participate in the management of the corporation, it shall not be deemed that the oligopolistic shareholder is not an oligopolistic shareholder even if he/she appears to be a single shareholder in light of the data, such as a list of shareholders or a statement of stock transfer or the register of corporate register, etc., if there are circumstances such that he/she was stolen the name of the shareholder or registered in a name other than the de facto ownership.
2) In light of the following circumstances: (i) the Plaintiff was unable to transfer the instant shares under the name of 5 to 7, (ii) the transfer of shares under the name of 13, and (iii) the transfer of shares under the name of 10, and (iv) the Plaintiff was deemed to have actually acquired the instant shares under the name of 10, such as the transfer of shares under the name of 10, and (iii) the transfer of shares under the name of 10, which appears to have been difficult for the Plaintiff to conclude that the instant shares were transferred under the name of 5,00,000, and that there was no possibility that the instant shares were transferred under the name of 10,000,000,000,0000 won were transferred to 3,000,000,0000,0000,0000,000 won were no more than 1,000,0000,000 won were no more than 1,000.
3) Therefore, the Plaintiff is not an actual shareholder of the instant shares, and the disposition of this case made by the Plaintiff on the premise that it is an oligopolistic shareholder of the instant company is unlawful.
3. Conclusion
If so, the plaintiff's claim shall be accepted on the grounds of its reasoning, and the judgment of the court of first instance is just, and the defendant's appeal is dismissed as it is without merit, and it is so decided as per Disposition.