12,063

It is illegal that the second taxpayer is designated as the second taxpayer.

Although the Plaintiff is merely a beneficial shareholder of a delinquent corporation, not a beneficial shareholder of the delinquent corporation, and is not a oligopolistic shareholder of the delinquent corporation under the Framework Act on National Taxes, the instant disposition made on a different premise is unlawful.

Article 39 of the Framework Act on National Taxes

2012Guhap2091 Revocation of Disposition of Imposition of Value-Added Tax

KimA

Head of Seocho Tax Office

June 14, 2013

August 16, 2013

1. Of the lawsuits in this case, the sum of additional charges and increased additional charges stated in the attached Form No. 1.

The part that seeks revocation of the imposition of OOO members shall be dismissed.

2. On December 22, 2011, the Defendant: (a) designated the Plaintiff on December 22, 201 as the secondary taxpayer of the BB Company; and (b) revoked each disposition of imposition of the value-added tax for 2010, the earned income tax for 2007, the earned income tax for 2010, the OOO for the earned income tax for 2010, and the OOO for the business income tax for 2010.

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

Cheong-gu Office

On December 22, 2011, the Defendant: (a) designated the Plaintiff as the secondary taxpayer on December 22, 2011; and (b) revoked the imposition of the value-added tax for 2010; (c) earned income tax for 2007; (d) OOOO for earned income tax for 2010; and (e) OOO for the business income tax for 2010.

1. Details of the disposition;

A. BB Co., Ltd. (hereinafter referred to as “corporation in arrears”) was a corporation established on Jan. 8, 2002 in terms of the development and supply of teaching programs as a pent, and the value-added tax OOO in 2010 (i.e., OOOwon + OOOOO director, additional charges and increased additional charges + the same in this paragraph). Wage and salary income tax in 2007, OOOO director in 207, 2010, + OOOO won in 200 + + OOOO won in 2010 + OOO won in £« + OOOOO won in ＋ in 200.

B. The Defendant determined that the sum of shares held by the Plaintiff and its specially related parties exceeds 50% of the equity shares of the delinquent corporation (Plaintiff 47.83%, CC 11.39%, and 59.22%), thereby constituting oligopolistic shareholders of the delinquent corporation, and pursuant to Article 39(1) of the former Framework Act on National Taxes (amended by Act No. 11124, Dec. 31, 201; hereinafter the same), the Plaintiff designated the Plaintiff as the secondary taxpayer for the amount of delinquent tax pursuant to Article 39(1) of the former Framework Act on National Taxes (amended by Act No. 11124, Dec. 31, 201); on December 22, 2011, the Plaintiff included the Plaintiff’s principal tax corresponding to the Plaintiff’s equity shares as indicated in the attached Form No. OO for Value-Added Tax in 207, OOO for wage and salary income tax year 207, 2010, OO.

C. The Plaintiff appealed against the Defendant’s disposition on December 22, 2011 and filed an appeal on January 4, 2012, but the Tax Tribunal dismissed the appeal on May 10, 2012.

[Ground of recognition] Unsatisfy, entry of Gap evidence 1 to 5 (including branch numbers in case of additional number), the purport of the whole pleadings

2. Whether the part of the instant lawsuit seeking revocation of the imposition of additional dues and aggravated additional dues is legitimate

Ex officio, we examine the legitimacy of the part seeking revocation of the disposition imposing additional dues and aggravated additional dues among the instant lawsuit.

If a national tax is not paid by the due date, an additional or increased additional dues provided for in Articles 21 and 22 of the National Tax Collection Act are naturally arising under the provisions of a law without a final procedure by the tax authority, and the amount thereof is determined. If the initial amount of tax is revoked or reduced, the additional dues are automatically revoked or reduced in response thereto. Thus, a notice of additional or increased additional dues cannot be deemed a disposition subject to appeal litigation (see, e.g., Supreme Court Decision 2000Du2013, Sept. 22, 2000).

Therefore, the part of the instant lawsuit seeking revocation of the disposition of imposition of additional charges and aggravated additional charges stated in the [Attachment Added Disposition and Additional Charges] (i.e., the part seeking revocation of the disposition of imposition of additional charges and increased additional charges + OOOO KRW + OOOO KRW) is unlawful. In the following cases, only the disposition of imposition of principal tax, except for increased additional charges and increased additional charges, is called "the disposition of this case" and is subject to the judgment on the merits.

3. Whether the instant disposition is lawful

A. The plaintiff's assertion

A substantial shareholder of a delinquent corporation who controls the management of the above company is KimD, the plaintiff's improper owner, and the plaintiff and SeoCC are merely formal shareholders and do not control the management of the delinquent corporation, the disposition of this case on a different premise is unlawful.

B. Relevant statutes

(1) The former Framework Act on National Taxes (amended by Act No. 11124, Dec. 31, 201)

Article 39 (Secondary Liability to Pay Taxes by Investor)

(1) Where the property of a corporation (excluding a corporation which has listed stocks on the securities market pursuant to Article 9 (13) 1 of the Financial Investment Services and Capital Markets Act; hereafter the same shall apply in this Article) is insufficient to cover the expenses for disposition on default of national taxes, additional dues, and disposition on default which the corporation has imposed or should pay, any of the following persons as of the date on which the division of payment of national taxes is established shall assume secondary tax liability for the shortage: Provided, That in cases of oligopolistic stockholders under subparagraph 2, the limit of the amount calculated by multiplying the amount calculated by dividing the shortage by the total number of outstanding stocks (excluding non-voting stocks; hereafter the same shall apply in this Article) of the corporation or the total amount of investment in the corporation, the number of stocks owned (excluding non-voting stocks; hereafter the same shall apply in this Article) or investment of the oligopolistic stockholders by the number

1. General partners;

2. An oligopolistic stockholder who falls under any of the following items:

(a) A person who exercises a substantial right over stocks or investment shares in excess of 50/100 of the total number of issued stocks or total investments of the relevant corporation;

(b) An honorary chairperson, chairperson, president, vice president, managing director, managing director, director, or any other person who actually controls the management of the corporation regardless of the title thereof;

(c) The spouse (including a person in a de facto marital relationship) of the persons prescribed in items (a) and (b) and the lineal ascendants and descendants living

(2) "Additional stockholder" in paragraph (1) 2 means a stockholder or one limited partner and his/her relatives prescribed by Presidential Decree or other persons having special relations with him/her, whose total amount of stocks held or investments exceeds 50/100 of the total number of outstanding stocks or investments of the juristic person concerned (hereinafter referred to as "excess stockholder").

(c) Fact of recognition;

(1) On January 8, 2002, the Plaintiff’s OED, OED established a delinquent corporation, and held 20,000 shares at that time, and served as the representative director of the delinquent corporation from October 10, 200 to February 20, 2008, and from March 31, 2010 to March 31, 201. Meanwhile, the Plaintiff was working as a middle school teacher and was working as the director of the EEE Institute, which was operated by the delinquent corporation from March 31, 2006, and was working as a director of the delinquent corporation from March 31, 2009, and was paid from the delinquent corporation the wages of OOO and OOO in March 200.

(2) The shares of a delinquent corporation have been changed due to capital increase or decrease, and the shareholders of the delinquent corporation as of the end of 2009 and the end of 2010 are as follows.

(unit: State)

Stockholders

Relation

For the end of 2009

For the end of 2010

GGG Co.

433,332 (100%)

21,666 (40.79%)

Mad Kim-D's birth

25,407 (47.83%)

SCC

The mother of KimD

6,048 (11.39%)

Consolidateds

433,332 (100%)

53,121 (100%)

(3) In around 2008, KimD, through FF, a corporation listed on KOSDAQ (hereinafter referred to as "FF"), (i) FFF purchased the shares of the corporation in arrears, and (ii) KimD made a bypassing the corporation in arrears by participating in the FF's capital increase increase with the price for the sale of the shares and by purchasing the shares from shareholders of FFF. As a result, FFF held 347,332 shares of the corporation in arrears (80.15%) as at the end of 2008, and (iii) held 433,32 shares of the corporation in arrears (100%) as at the end of 209.

(4) However, on November 2, 2009, 2009, KimD transferred the FF’s management right to HH on the condition that KimD exercises for three years the management right of the FF’s subsidiary company, and KimD bears a large amount of debt and delinquent tax against PJ partnership, etc. at that time.

(5) Meanwhile, the delinquent corporation offered capital increase to raise operating funds in 2010, and the Plaintiff acquired 25,407 shares of the delinquent corporation (47.83%) and 6,048 shares (1.39%) by offering capital increase.

(6) On April 1, 2010, Kim Do-dong No. 1448 LLL apartment No. 1602, OK owned by the new bank, Inc., an OCO in the name of the Plaintiff, with respect to the establishment of the right to collateral security of the maximum debt amount and the loan of OOOOO in the name of the Plaintiff with respect to 148 LLL apartment No. 102, 1602.

(7) On April 1, 2010, 2010, KimD remitted KRW OOO on April 1, 2010, KRW OOOO on April 16, 2010, KRW OOOO on May 4, 2010, KRW OOOOO on May 10, 2010, and KRW OOOOOO on May 31, 2010 to the Plaintiff’s new bank account. In addition, KimD remitted KRW OOOO to the Plaintiff’s new bank account on the same day, the Plaintiff transferred KRW 10 out of the money deposited to its new bank account on the same day.

(8) On June 1, 2010, the Plaintiff and Western paid either OOO or OOOO or OOOOO on August 16, 2010 to the delinquent corporation, respectively.

[Reasons for Recognition] In the absence of dispute, the entry of Gap evidence Nos. 7 through 17 in Gap evidence Nos. 3 and 4 (including the number with each number), the witness KimD's partial testimony, and the purport of the whole pleadings from Gap evidence No. 2

D. Determination

Whether it constitutes an oligopolistic shareholder under Article 39(1)2 of the Framework Act on National Taxes shall be determined based on whether it is a member of a group of stocks owned by the majority and, in detail, even if there is no fact involved in the management of the company, it cannot be determined that it is not an oligopolistic shareholder. The fact of ownership of stocks shall be proved by the tax authority through the data such as the register of stockholders, the statement of stock transfer status, or the register of corporate register, etc.; Provided, That even in cases where it 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 registered in the name other than the name of the real owner, the actual shareholder shall not be deemed to be a shareholder, but it shall be proved by the nominal owner who asserts that he is not a shareholder (see, e.g., Supreme Court

위와 같은 법리에 비추어 이 사건에 관하여 살피건대, 위 인정사실에 의하면, 원고가 2009. 3. 31 경부터 체납법인의 이사로 근무하고 있고, 체납법인무로부터 상당한 액수의 보수를 지급받음 사실은 인정되나, 위 인정사실, 증인 김DD의 일부 증언 및 변론 전체의 취지를 종합하여 인정되는 다음과 같은 사정, 즉 ① 김DD는 체납법인을 직접 설립한 이래 현재까지 위 법인을 실질적으로 운영하고 있는 것으로 보이는 점, ② 김DD는 체납법인에 대한 유상증자 당시 거액의 채무를 부담하고 있었기 때문에 자신의 명의로는 체납법인의 주식을 취득할 수 없는 상황에 있었던 것으로 보이고, 원고와 서CC가 유상증자 대금으로 체납법인에 납입한 돈을 김DD에 의하여 조달된 것으로 보이는 점, ③ 원고는 김DD의 동생이고 서CC는 김DD의 모이AM로 김DD로서는 원고와 서CC로부터 주주명의를 쉽게 차용할 수 있었을 것으로 보이는 점, ④ 김DD는 2006년경 체납법인의 주식 중 강MM에게 5,067주, 김NN에게 11,400주, 박PP에게 10,387주, 양QQ에게 12,412주, 정RR에게 11,400주를 명의신탁하여 증여세를 부과받기도 한 점 등을 고려하면, 체납법인의 실질주주는 김DD이고 원고는 체납법인의 차명주주에 불과하다고 봄이 타당하다.

Therefore, even though the plaintiff is not in the position of oligopolistic shareholders of a delinquent corporation under the former Framework Act on National Taxes, the disposition of this case is unlawful (In addition, with respect to the earned income tax OOO in 2007, the plaintiff cannot be deemed as a shareholder as of the date when the national tax liability is established).

4. Conclusion

Therefore, the part of the lawsuit in this case seeking revocation of the disposition of imposition by an OOOO in addition to the additional charges and increased additional charges stated in the attached Form No. 1, shall be dismissed as unlawful, and the remainder of the claims shall be accepted as reasonable, and the litigation cost shall be borne by the defendant pursuant to Article 8(2) of the Administrative Litigation Act and the proviso of Article 101 of the Civil Procedure Act. It is so decided