It is reasonable to view that the plaintiff was registered as a next shareholder of the delinquent corporation at the request of Kim E-E operated by the actual owner of the delinquent corporation.

It is reasonable to view that the plaintiff was registered as a next shareholder of the delinquent corporation at the request of Kim E-E operated by the actual owner of the delinquent corporation.

Article 39 (Secondary Liability to Pay Taxes by Investor)

2017Guhap64706 Designation of person liable for secondary tax payment and revocation of the disposition imposing value-added tax.

AAA

Head of Gwangju District Tax Office

September 21, 2017

November 16, 2017

1. The Defendant’s imposition of value-added tax of KRW 15,753,620 on February 6, 2016 against the Plaintiff on February 6, 2016 shall be revoked.

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

Cheong-gu Office

The same shall apply to the order.

1. Details of the disposition;

A. The BB industry development corporation (hereinafter referred to as “corporation in arrears”) was established on May 14, 2012 and engaged in the business of maintaining and managing business facilities as its main business, and was closed on June 30, 2015, and was in arrears with value-added tax of KRW 15,753,620 for the second term portion of value-added tax in 2012.

B. The defendant's shares owned by the plaintiff as of the date of establishing the tax liability of the delinquent corporation

(1,000 shares) deemed to be 10% of the amount of 100%, on February 6, 2016, the Plaintiff designated the second taxpayer for the development of BB industry and imposed and notified the amount of 15,753,620 won in arrears (hereinafter referred to as the “instant disposition”).

C. The Plaintiff appealed and filed an objection on March 7, 2016, but was dismissed on April 25, 2016. On September 13, 2016, the tax Tribunal rendered a request for a tax trial and rendered a decision on December 22, 2016 to re-examine whether the instant disposition is an oligopolistic shareholder of the delinquent corporation and to rectify it according to the result thereof.

D. From January 24, 2017 to February 12, 2017, the Defendant conducted a reinvestigation, and notified the Plaintiff of the fact that the initial disposition was concluded as justifiable on February 23, 2017. The Plaintiff received it on March 3, 2017.

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1 through 5 (including branch numbers, hereinafter the same shall apply), Eul evidence No. 1, the purport of the whole pleadings

2. Whether the instant disposition is lawful

former Framework Act on National Taxes (Amended by Act No. 11845, May 28, 2013)

Article 39 (Secondary Liability to Pay Taxes by Investor)

Where the property of a corporation (excluding a corporation which has listed its 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 national tax, additional dues, and disposition fee for arrears that the corporation imposed or pays with the property of the corporation, any of the following persons as of the date on which the liability to pay national taxes is established shall assume secondary tax liability for the shortage: Provided, That in cases of oligopolistic stockholders under subparagraph 2, the limit shall be 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, the number of stocks (excluding non-voting stocks;

1. General partners;

2. A shareholder or one limited partner and a person prescribed by Presidential Decree from among his/her related persons;

the total amount of their shares or investments is the total number of shares issued or invested by the corporation.

persons who have over 50/100 of the total amount and who have de facto exercise the rights thereto

under the oligopolistic stockholder d)

A. The parties' assertion

The defendant's assertion that the disposition of this case is lawful in light of its grounds for disposition and relevant statutes.

As to this, the Plaintiff is against the binding force of the re-audit decision by the Tax Tribunal, and ② The Plaintiff, not the actual shareholder of the delinquent corporation, has stolen the name of the shareholder or has lent the name of the shareholder, and the actual shareholder is Kim E-E, so the instant disposition is unlawful.

B. Relevant statutes

C. Determination

1) As to the assertion that it violates the binding force of the re-investigation decision

A) As to the matters pointed out in the pertinent decision, the re-audit decision constitutes a modified decision in which the agency has expressed its intent to take the contents of the subsequent disposition as part of the decision on the request for a trial, etc. As such, the re-audit decision takes effect as a decision on the request for a trial by supplementing the contents thereof by the subsequent disposition of the agency (Supreme Court en banc Decision 2007Du12514 Decided June 25, 2010), and the agency has a legal obligation to conduct re-audit on the matters pointed out in the re-audit decision, and it cannot be deemed as going against the binding force even if the initial disposition is maintained even after re-audit according to the purport of the re-audit decision.

B) According to the evidence evidence Nos. 3, 4, and 1 as to the instant case, the Tax Tribunal rendered a reinvestigation decision to the effect that the Plaintiff ought to re-examine whether a delinquent corporation is an oligopolistic shareholder, and that the Defendant determined that the initial disposition was justifiable through a reinvestigation from January 24, 2017 to February 12, 2017, and notified the Plaintiff on February 23, 2017. Thus, the Defendant’s notice of the result of reinvestigation cannot be deemed to contravene the binding force of the Tax Tribunal’s re-audit decision. Accordingly, the Plaintiff’s above assertion is without merit.

2) As to the assertion that the Plaintiff is a mere shareholder in form

A) Article 39 of the former Framework Act on National Taxes (amended by Act No. 11845, May 28, 2013)

The issue of whether a shareholder is an oligopolistic shareholder as prescribed in subparagraph 2 shall be determined by whether a group of stocks owned by the majority is a member or a group of stocks owned by the majority. Specifically, even if there is no fact involved in the management of the company, it cannot be determined that the ownership of stocks is not an oligopolistic shareholder. The fact of ownership of stocks is proven by the tax authority based on the list of stockholders, detailed statement of stock transfer or 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 by which the tax authority stolen the name of the shareholder or registered in the name other than the name of the real owner, the actual shareholder cannot be deemed to be a shareholder, but this shall be proved by the nominal owner who asserts that he is not a shareholder (see

B) The above evidence, Gap evidence Nos. 6 to 14, Eul evidence No. 4, and witness Kim Jae-in

The following facts may be acknowledged in full view of the purport of the whole pleadings.

(1) The Plaintiff is serving as a director ofCCDC Co., Ltd. (hereinafter “CCDC”).

From April 15, 2012 to May 31, 2012, the wages of KRW 3,550,000 were received fromCCD. The representative (a director) of a delinquent corporation was registered as the Plaintiff from the time of establishment to May 3, 2013, and thereafter as the head ofCCD from the time of establishment. The Plaintiff was paid KRW 16,100,000 from the date of June 1, 2012 to December 31, 2012.

(2) On May 10, 2012, the amount of KRW 10,000,000 was transferred from CCTV to the Plaintiff’s account. On May 11, 2012, the said amount was transferred from the Plaintiff to the Plaintiff’s account, and the deposit balance certificate was issued on May 10, 2012. The said amount was used for the purpose of payment of capital at the time of incorporation of the defaulted corporation.

(3) On June 25, 2013, the Plaintiff, at the director of the Seoul Regional Tax Office, informed the director of the Seoul Regional Tax Office of the fact that the representative director KimE created a borrowed company, including the delinquent corporation, and completed a false contract and evaded tax.

(4) The Defendant’s corporate tax investigation for a delinquent corporation from March 31, 2014 to April 19, 2014

The main contents of the investigation completion report prepared and conducted shall be as follows:

(5) On April 22, 2014, the Plaintiff stated to the effect that “the service contract was not entered into between the Plaintiff,CCNC, ENG, and FF Scholarship Association, and there was no fact that the service was provided or provided in connection therewith,” and that “the Plaintiff directly performed the business improvement services from the beginning of May 2012 (the CCD representative director and the actual operator of the corporation in arrears).”

(6) The Defendant issued a disposition to correct the relevant tax on the grounds of the processing sale and processing purchase by the delinquent corporation. As to the bonus disposition related to the processing and purchase in the appeal procedure, the actual representative director of the delinquent corporation is KimE or a financial transaction operated to disguise the actual transaction, and thus, revoked by deeming that there was no substantial outflow of the assets of the delinquent corporation.

(7) On the second disposition of value-added tax in 2012, a delinquent corporation may file a revocation suit

The Suwon District Court rendered a judgment dismissing the claim of the delinquent corporation on October 11, 2016, on the ground that the sales tax invoice and the purchase tax invoice received fromCCDD and FF Scholarship Association constituted a false tax invoice received without real transaction, and the above judgment became final and conclusive on October 10, 2017.

(8) On January 13, 2014, in the case of text messages that ParkD sent to the Plaintiff on January 13, 2014, “B” continues to be deemed as one of the following:

In order to discontinue annoying, it appears that the Plaintiff’s seal is necessary because the shares are in the name of the Plaintiff.

C) In light of the following circumstances revealed in the above facts, the Plaintiff is registered as a next shareholder of the delinquent corporation upon the request of Kim E-E, which was actually owned by the delinquent corporation.

It is reasonable to see that the Plaintiff, as seen above, was an oligopolistic shareholder who is merely a shareholder at the time when the liability for tax payment was established, and thus, the instant disposition should be revoked on a different premise. The Plaintiff’s disposition should be revoked on a different premise.

(1) The fact that the substantial representative of the defaulted corporation is KimE in the process of the tax investigation and the lawsuit seeking revocation of the tax disposition was revealed, and that the sales and purchase transaction of the defaulted corporation was processed. This is supported by the Plaintiff’s assertion that the KimE, the representative director of theCCD, was a delinquent corporation that did not have any substance for the purpose of tax evasion, and that the Plaintiff worked as the employee ofCCDC and lent the name of the representative and the shareholder upon the request of the KimE.

(2) The Plaintiff’s capital was paid at the Plaintiff’s account at the time of the incorporation of the defaulted corporation, but the above amount was deposited fromCCDC to the Plaintiff’s account and withdrawn again within a short period. Therefore, it cannot be deemed that the Plaintiff actually paid

(3) From June 1, 2012 to December 31, 2012, the Plaintiff received benefits of KRW 16,100,000 from a delinquent corporation, which was registered as a representative on the corporate register of the delinquent corporation, and it is recognized that the Plaintiff performed the duty of removal on the store in Busan under the direction of KimE. However, in light of the fact that the Plaintiff received only 2,000,000 won as other employees, just as other employees, and that the difference between the processed sales and the processed sales of the delinquent corporation was withdrawn as provisional payments, and flow over to KimE, it is difficult to view that the Plaintiff is a substantial owner of the delinquent corporation.

3. Conclusion

Thus, the plaintiff's claim of this case is justified and accepted.