Whether the secondary tax liability is an oligopolistic stockholder of a corporation shall be determined by whether it is the cause of a group of stocks owned by a majority.

Whether the secondary tax liability is an oligopolistic stockholder of a corporation shall be determined by the cause of the group of stocks owned by the majority. Specifically, even if there is no fact that he/she participated in the management of the company, it cannot be determined that it is not an oligopolistic stockholder.

Article 39 (Secondary Tax Liability of Investors)

2017Guhap71810 Revocation of Disposition of Imposing corporate tax, etc.

MaO

OOO Head of the tax office

August 8, 2018

September 5, 2018

1. Of the instant lawsuit, the part of the Defendant’s claim for revocation of the imposition of each additional dues among each of the dispositions listed in the separate sheet No. 1 attached hereto, which the Plaintiff rendered on February 21, 2017.

2. The plaintiff's remaining claims are dismissed.

3. The costs of lawsuit shall be borne by the Plaintiff.

Cheong-gu Office

The imposition of corporate tax, imposition of value-added tax, and imposition of additional dues as stated in attached Table 1, which the Defendant rendered to the Plaintiff on February 21, 2017, shall be revoked.

1. Details of the disposition;

A. The OO’s General Steel Co., Ltd. (hereinafter “instant company”) is a corporation established on April 25, 2008 for the purpose of wholesale business, etc. of steel. According to the “detailed Statement on the Change of Stocks, etc. submitted from the year 2008 to the business year 2016, 70% out of the total number of issued stocks of the instant company was 10,000 shares of the instant company, the representative director of the instant company, 20%, 10%, and 10%, respectively. Meanwhile, the Plaintiff is MaO’s children, and MaO is MaO’s spouse.

B. After conducting a tax investigation with respect to the instant company, on December 7, 2016, the Defendant did not issue a tax invoice even if the instant company sold steel bars to the seller, and omitted the amount of income using a borrowed account. As indicated in the attached list 2, the Defendant imposed and notified each of 852,576,170 won in total as value-added tax from the second period to the second period from 2008 to the second period from 2015 (hereinafter “disposition with respect to the instant company”).

C. However, the instant company closed its business on December 31, 2016 and did not pay the corporate tax and value-added tax imposed and notified to the instant company as above. On February 21, 2017, the Defendant deemed the Plaintiff as the oligopolistic shareholder of the instant company, and designated the Plaintiff as the secondary taxpayer on February 21, 2017, and imposed and notified the Plaintiff each of the corporate tax imposed and notified to the Plaintiff, and the corporate tax and value-added tax equivalent to 10% of the corporate tax and value-added tax imposed and notified to the Plaintiff as shown in the separate sheet 1, as well as the additional tax imposed and notified to the Plaintiff (hereinafter “instant disposition”).

D. On April 21, 2017, the Plaintiff dissatisfied with the instant disposition, filed an appeal with the Tax Tribunal on April 21, 2017, but the Tax Tribunal dismissed the Plaintiff’s appeal on November 2, 2017.

[Reasons for Recognition] Facts without dispute, Gap evidence 1 to 6, Eul evidence 1 to 3 (including each number; hereinafter the same shall apply) and the purport of the whole pleadings

2. Relevant statutes;

Attached Table 3 shall be as stated in the relevant statutes.

3. Summary of the plaintiff's assertion

A. In order to establish a corporation, the Plaintiff only lent only the name for holding shares to Periodical upon the advice of a certified judicial scrivener that the shareholder should be at least three persons, and did not participate in the operation of the instant company. The Plaintiff received benefits as an auditor or received dividends as a shareholder. In addition, the Plaintiff was raising business income in operating the instant company separately. Accordingly, the Plaintiff is not a real shareholder of the instant company, and thus, cannot be deemed as a secondary taxpayer for the instant company. Accordingly, the instant disposition taken on a different premise should be revoked as unlawful.

B. The instant company did not engage in an active act to evade national taxes, but merely did it under-reported sales, which is merely merely a fraudulent or other unlawful act as stipulated in Article 26-2(1)1 of the Framework Act on National Taxes. Therefore, the portion of the disposition against the instant company, among the disposition against the instant company, which was 208, 2009, 2009, and 208 and 2011, shall be revoked by being unlawful after the lapse of five-year exclusion period under Article 26-2(1)3 of the Framework Act on National Taxes, and the portion of the value-added tax for the period from 208, 2009, 2010, and 208 to 11 year from 2011, among the disposition against the Plaintiff based on the subsidiary nature of the secondary tax liability.

4. Determination as to whether the part of the instant lawsuit seeking revocation of the disposition imposing additional dues is legitimate

On February 21, 2017, the Plaintiff received a notice of payment of KRW 87,845,270, total amount of additional dues for corporate tax and KRW 85,257,581, in addition to the disposition in this case from the Defendant on February 21, 2017, and received a notice of payment of KRW 85,257,581 as additional dues for value-added tax. Accordingly

If a national tax is not paid by the due date, the additional dues under the National Tax Collection Act naturally arise under the provisions of the Act without the final procedure by the tax authorities (see, e.g., Supreme Court Decision 2005Da15482, Jun. 10, 2005). Therefore, it cannot be deemed that the notice of additional dues is a disposition subject to appeal litigation (see, e.g., Supreme Court Decision 2005Da15482, Jun. 10, 2005). Therefore, even if the Defendant notified the Plaintiff through the service of the notice of payment, as stated in subparagraphs 1 and 2, that the corporate tax in arrears and the principal tax of value-added tax should be paid by the company as a secondary taxpayer (referring to the disposition in this case) and notified the Plaintiff of the additional dues by stating that it

5. Determination on the legality of the instant disposition

A. Whether the plaintiff's secondary tax liability is recognized

1) Relevant legal principles

The issue of whether a secondary tax liability is an oligopolistic shareholder of a corporation shall be determined based on the cause of the group of stocks owned by the majority. Specifically, even if there is no fact involved in the management of the corporation, it cannot be determined that the ownership of stocks is not an oligopolistic shareholder. The tax authority establishes it through the list of stockholders, specifications of stock movement, or the list of corporate register, etc.: Provided, That even in cases where a shareholder appears to be a single shareholder in light of the above data, if there are circumstances such as where the name of the shareholder was stolen or the name was registered under a name other than the real owner, the actual owner cannot be deemed to be a shareholder, but the nominal owner who asserts that he/she is not a shareholder must prove that he/she is not a shareholder. In addition, it does not necessarily require the actual exercise of shareholder rights, and it is sufficient that the nominal owner who claims that he/she is not a shareholder, but is in a position to exercise shareholder rights as to the stocks owned as of the date of establishment of the tax liability (see, e.g.

2) Determination

As seen earlier, the Plaintiff appears to hold 10% of the total number of the issued and outstanding shares of the instant company in the statement on the change of the company’s shares, and 70% of the listed shares in the specially related party. Thus, pursuant to the aforementioned legal principles, even if the Plaintiff is a shareholder of the instant company, even if the Plaintiff does not specifically participate in the management of the instant company or actually exercise the shareholder’s right, the Plaintiff shall be presumed to be an oligopolistic shareholder under Article 39 subparag. 2 of the Framework Act on National Taxes

On the other hand, the plaintiff's statements Nos. 3, 6 and 7 and witness testimony of the company Nos. 5 are merely 0 of the following facts or circumstances that can be acknowledged by comprehensively taking account of the overall purport of arguments, i.e., the plaintiff was present at the inaugural general meeting of the company on April 25, 2008. The minutes of the above inaugural general meeting include three shareholders of the company. The plaintiff also examined and reported the subscription of shares and the payment of subscription money issued by the company at the above inaugural general meeting, and the minutes of the above inaugural general meeting were certified by the notary public. 2 The plaintiff asserted that the plaintiff was merely one shareholder of the company, 00,000, 000 won and 00 of the company's account No. 20 were merely 0 of the company's testimony and 0 of the company's account. 30 of the company's account no more than 5 of the company's testimony but also 1 of the company's account No. 5 of the company's. 20-1 of the company.

B. Whether the exclusion period has expired

1) Relevant legal principles

According to Article 26-2(1) of the Framework Act on National Taxes, national taxes may not be imposed after five years from the date on which the national taxes can be imposed (Article 26-2(1)3). However, in cases where a taxpayer evades a national tax, obtains a refund or deduction by fraudulent or other unlawful means, ten years (Article 10(1)); and where a taxpayer fails to file a tax base return within the statutory due date of return, seven years (Article 26-2(1)1 of the Framework Act on National Taxes (Article 26-2(2) shall not be imposed after the lapse of seven years (Article 26-2(1). Here, the term "Fraud or other unlawful acts" means acts which are recognized by social norms as acts enabling the tax evasion, i.e., acts which make it impossible or considerably difficult to impose and collect taxes, and it does not constitute a mere failure to file a tax return under tax laws or filing a false tax return without accompanying any other acts. However, in cases where active concealment intention, such as a false or underreporting act on books, multiple accounts, etc., it can be recognized as 3014.

2) Determination

Based on the above legal principles, the following facts or circumstances that can be recognized by the entry of the facts recognized earlier and the purport of the entire pleading No. 4, namely, value-added tax and corporate tax at issue with respect to the instant company are taxes on which the taxpayer voluntarily filed a tax base and the amount of tax are determined by filing a return of tax liability; (j) (i) (i) (i) (i) (i) (i) (i) (i) (ii) (i) (i.e., (ii) (i) (i) (i) (i.e., (ii) (i) (i., (ii) (i) (i.e., (ii) (i) (i., (ii) (i) (i.e., (iii) (i) (i., (ii) (i.) (i.) (i.e., (iii) (i) (i) (i., (ii) (iii) (i)) (i.e., (iv)) (i., (iv))))) (ii))) (iii)) (iii) (iii) (i.)) (i.

6. Conclusion

Therefore, the part of the claim for revocation of the imposition of additional dues listed in the separate sheet No. 1 among the lawsuit of this case is unlawful, and thus, the remaining claims of the plaintiff are dismissed as it is without merit. It is so decided as per Disposition.