The legitimacy of the assertion that the name was lent to the second taxpayer’s designation disposition

The second taxpayer of the corporation must prove that it is not a beneficial shareholder unlike the list of shareholders, but there is insufficient evidence to acknowledge the nominal shareholder.

The contents of the decision shall be the same as attached.

Article 39 of the Framework Act on National Taxes [Secondary Liability for Tax Payment by Contributor]

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

Purport of claim and appeal

The judgment of the first instance shall be revoked. The defendant revoked the second taxpayer designation and the second taxpayer notification of value-added tax of 271 value-added tax on July 3, 2007 for the plaintiff on 2006, KRW 20,149,560 for the business year 2006, corporate tax of 2,524,700 for the business year 2006, value-added tax of 11,916,100 for the year 2006, KRW 13,988,190 for the value-added tax of 206, and KRW 14,930,190 for the year 205.

The reasoning for this court's reasoning is as follows: (a) although based on Gap evidence Nos. 21 through 22-4 of the evidence Nos. 21 to 22-4 of the court of first instance submitted by the plaintiff in the trial, and the testimony by Kim Jong-○ of the party Kim Jong-○, the plaintiff is merely a shareholder in the form of lending the shareholder's name to Kim Jong-○, the plaintiff's reasoning for the judgment of the court of first instance is the same, and therefore, (b) it is not sufficient to recognize the plaintiff's assertion. Thus, it shall be cited as it is in accordance with Article

Therefore, the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed as it is so decided as per Disposition.

[Tgu District Court 2007Guhap2939, 2008.09]

1. The plaintiff's claim is dismissed.

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

1. Details of the disposition;

A. On October 13, 2005, 2005, ○○ Industry Co., Ltd. (hereinafter “○○ Industry”) was a corporation established for the purpose of labor management and worker dispatch business. From February 2, 2005 to February 2, 2006, 93,364,000 won in total as value-added tax 4, and 97,079,000 won in total as corporate tax for 2006 business year.

B. Accordingly, the Defendant determined that the property of the ○○ industry, which is the principal taxpayer, is insufficient to cover the above delinquent amount. As of the date of establishing the principal tax liability for each of the above delinquent taxes, the Plaintiff deemed to be an oligopolistic shareholder of the ○ industry under Article 39(1)2(a) of the former Framework Act on National Taxes (amended by Act No. 8139 of Dec. 30, 2006) as of the date of establishing the principal tax liability, and thus, the Plaintiff imposed corporate tax of 2,524,700 won for the business year of 2006,560, 2006, 11,916,100 won for the value-added tax of 2,524,70 won for the business year of 206, 2006, 13,988, 190 won for the value-added tax of 2,206, and 14,930,190 won for the second period of 205 (hereinafter referred to as each of the instant disposition”).

[Ground of recognition] Facts without dispute, Gap evidence 1-5, Eul evidence 1-1-2, Eul evidence 3, the purport of the whole pleadings

2. Whether each of the dispositions of this case is legitimate

A. The plaintiff's assertion

The ○○ industry is a company substantially controlled by Kim○, and the Plaintiff is registered as an owner of 3,500 shares issued in the register of shareholders of the ○○ industry, which is 70% of the total number of shares issued in the register of shareholders of the ○○ industry. However, this is merely a loan of the ownership upon the request of Kim○, which was a person with bad credit standing at the time, and thus, the instant disposition of taxation based on the premise that the Plaintiff is

(b) Related statutes;

It is as shown in the attached Form.

(c) Fact of recognition;

(1) In order to use ○○ Industry as an office on October 13, 2005, ○○○○○○ 2, 148-10 ○○ building 205-2, a deposit of KRW 1 million, monthly rent of KRW 90,000,000, monthly rent of KRW 90,000 from October 15, 2005 to November 30, 2007. On the same day, the registration of establishment of ○○ industry, which was an executive officer of ○○○○○○, the Plaintiff, and the auditor, was completed.

(2) At the time of establishment, the register of shareholders registers 1,500 shares out of 5,00 shares issued by the Plaintiff as being owned by the Plaintiff, and the remaining 3,50 shares out of 5,00 shares, based on the specifications of changes in shares, and there is no other issue of changes in shares thereafter.

(3) On October 12, 2005, prior to the establishment of the above ○○ industry, Kim Jong-soo deposited KRW 50 million with his own account (00-00-0000), and transferred KRW 50,100,000 following the deposit to 00 ○○’s account (00-00-0000). On the same day, 00 00 million from the above account, 00 won was deposited at KRW 35,500,000 at face value and KRW 35,5 million at face value. On the back of the cashier’s check, the Plaintiff entered the resident registration number and mobile phone serial number on the back of the cashier’s check of KRW 15,000,00 at face value and KRW 35,000 at face value.

(4) On October 13, 2005, the ○○ Industries: (a) designated the ○○ Dong Branch of the Agricultural Cooperatives Federation as a stock payment bank; (b) paid each cashier’s checks listed in the preceding paragraph in the said bank account (CF 000-00-0000), and re-deposited KRW 50 million equivalent to the amount paid for the shares on the same day.

(5) From July 15, 2003 to April 10, 2006, the Plaintiff served as a ○○ Life Insurance Co., Ltd., and served as the ○○○○○○ Team from June 2006 to April 2007. After that, the Plaintiff was appointed as the ○○○○○○○ director for the same purpose as the ○○ industry, such as labor management and the dispatch of workers on May 30, 2007, but was appointed as the ○○○○○○○○ director on July 6, 2007.

(6) Before the establishment of the ○○ Industry, the ○○○○ had been in arrears with approximately KRW 901,00 to the ○○ Savings Bank. Around May 13, 2005, around KRW 24,400,000, around November 15, 2007, each of the obligations of KRW 61,535,730 to the ○○○○○○○○○ Investment Company was in arrears with the obligation of KRW 3,32,000 to the ○○○○○ Savings Bank, and was appointed as the representative director on May 7, 2007.

[Ground of recognition] Facts without dispute, Gap evidence 3, Gap evidence 4, Gap evidence 6, Gap evidence 8 through 13, Gap evidence 19, Gap evidence 20, Eul evidence 3 through 6, and the purport of whole pleadings and arguments

C. Determination

In order to bear the secondary tax liability for a shareholder of a corporation, the shareholder must actually hold the shares of the corporation as the oligopolistic shareholder group which owns at least 51/100 of the total number of shares issued by the corporation, and only if it is recorded as a shareholder in the shareholder registry of the corporation in the form of a corporate registry, the burden of proof can not be imposed on the tax authority. However, the tax authority must prove it by the data such as the shareholder registry, the statement of stock transfer, and the list of the corporate registry, and the tax authority must prove it as a single shareholder in the light of the above data, and the fact that the actual shareholder is not a different shareholder from the name due to the circumstances such as the illegal use of the shareholder registry or the registration in the name other than the real shareholder registry (see, e.g., Supreme Court Decisions 95Da13203, Dec. 12, 195; 91Nu1721, Jul. 23, 199).

살피건대, 위 인정사실에 의하면, 원고가 ㅇㅇ산업 주주명부 등에 2005. 10. 13.부터 총 발행주식의 70%에 해당하는 3,500주를 소유하고 있는 것으로 등재되어 있으며, 위 ㅇㅇ산업 설립일 부터 이 사건 처분일까지 주식의 변동은 없는 바, 이와 같이 주주명부 및 주식등변동상황명세서에 원고 소유 주식의 합계가 발행주식 총수의 100분의 51 이상이 되는 것으로 기재되어 있는 이상 결국 원고로서는 그가 ㅇㅇ산업의 실질적 주주가 아니며, 위 주주명부, 주식등변동상황명세서의 기재는 도용 또는 차명에 의한 것으로서 형식상의 기재에 불과하다는 특별한 사정을 입증하지 못하는 한 ㅇㅇ산업의 제2차 납세의무자로서의 책임을 면할 수 없다고 할 것이다.

그러므로 과연 원고가 ㅇㅇ산업의 실질적 주주가 아니고 단지 명의상으로만 주주로 되어있을 뿐인지에 관하여 살펴보면, 원고의 주장에 부합하는 듯한 갑 제7호증, 갑 제16호증의 1, 갑 제17호증의 1, 갑 제18호증의 1의 각 기재 및 증인 김○상 의 일부 증언은, 김○상의 계좌로 5,000만원이 입금되고 그 돈이 ○○산업의 주금납입금으로 사용된 것으로 보이기는 하나, 위 돈 역시 김○수의 계좌에서 나왔고, 주금납입 후 바로 인출된 사정에 비추어 위 계좌변동 상황만으로 김○상이 실질적인 주주라고 단정하기 어려운 점, 원고는 자신이 ○○산업에서 김○상의 직원으로 근무한 것에 불과하였다고 주장하나 급여명세서 등의 객관적인 자료를 제출하지 못하고 있는 점, 원고가 ○○산업을 퇴사한 후 ○○산업과 동일한 목적으로 설립된 주식회사 ○○○○의 대표이사도 등재된 점, 원고는 김○상이 신용불량자이어서 설립 당시 대표이사로 취임하지 못하고 원고가 명의를 빌려주었다고 하나 앞서 본 인정사실에 의하면 여전히 다수의 채무를 보유하고 있어 신용불량상태에 있는 것으로 보이는 김○상이 2007. 5. 7. ○○산업의 대표이사로 취임한 점 등에 비추어 그대로 믿기 어렵고, 갑 제4 내지 6호 증, 갑 제8 내지 15호 증, 갑 제19, 20호 증의 각 기재만으로는 원고가 ○○산업의 형식상의 주주에 불과하다는 사실을 인정하기에 부족하며, 달리 이를 인정할 증거가 없으므로 원고의 위 주장은 이유 없다.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so decided as per Disposition.

Related Acts and subordinate statutes

Framework Act on National Taxes (amended by Act No. 8139 of Dec. 30, 2006)

Article 14 (Real Taxation)

(1) Where the ownership of income, profit, property, act or transaction subject to taxation is merely nominal and a person to whom such ownership belongs exists, tax-related Acts shall apply to such person to whom such person actually belongs as a taxpayer.

(2) The provisions on the calculation of tax base in tax-related Acts shall apply according to the substance, notwithstanding the name or form of income, profit, property, act or transaction.

Article 39 (Secondary Liability to Pay Taxes by Investor)

(1) Where the property of a corporation (excluding a corporation whose stocks are listed on the securities market under Article 2 (1) of the Korea Securities and Futures Exchange Act) is insufficient to cover the national taxes, additional dues and disposal expenses that are imposed on or to be paid by such corporation, any person falling under any of the following subparagraphs as of the date on which the liability to pay national taxes is established shall assume the secondary liability to pay the shortage: Provided, That in cases of oligopolistic stockholders pursuant to subparagraph 2,

The limit of the amount calculated by dividing the shortage by the total number of stocks issued (excluding non-voting stocks; hereafter the same shall apply in this Article) or the total amount of investment of the corporation, shall be the amount calculated by multiplying the number of stocks owned (excluding non-voting stocks) by the oligopolistic stockholder or the amount of investment (in the case of oligopolistic stockholders under subparagraph 2 (a) and (b), the

1. General partners;

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

(a) A person who exercises a substantial right over the stocks or investment shares in excess of 51/100 of the total issued stocks or total investments of the relevant corporation;

(b) A person who actually controls the management of a corporation, regardless of the name, such as the honorary chairperson, chairperson, president, vice president, managing director, managing director, director, or any other person who actually controls the management of the corporation;

(c) The spouse (including the person in de facto marital relations) of the persons under items (a) and (b) and the lineal ascendants and descendants sharing their living

(2) For the purpose of paragraph (1) 2, the term “excess stockholder” means a person who is a relative or has other special relations with a stockholder or partner with limited liability as prescribed by the Presidential Decree, and the total sum of his stocks or investment is 51/100 or more of the total number of stocks issued or total amount of investment made by the juristic person concerned (hereinafter referred to as “excess stockholder”).