early trial 2013west 2186 ( October 20, 2014)

Service by public notice, which was returned due to a director's unknown address and returned to the previous resident registration address, was lawful.

The reason why a tax disposition was imposed on the Plaintiff, not an oligopolistic shareholder, does not constitute grounds for invalidation because it cannot be seen as a apparent defect in appearance, and the service by public notice, which was sent to a resident registration address, but returned due to a director’s unknown return, was lawful.

Article 11 of the Framework Act on National Taxes

2014Guhap7305 Revocation of designation of the person liable for secondary tax payment

JO

O Head of tax office

oly 2014.10

oly 17, 2015

1. The part of the conjunctive claim in the instant lawsuit is dismissed.

2. The plaintiff's primary claim is dismissed.

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

In the first place, it is confirmed that each disposition of imposition of the value-added tax of KRW 00,00,000 (including the additional tax), the value-added tax of KRW 00,000,000 (including the additional tax), the value-added tax of KRW 00,000,000 (including the additional tax), the value-added tax of KRW 00,000,000 (including the additional tax), the corporate tax of KRW 0,000,000 (including the additional tax) for the business year of 2008, May 21, 2012, which was imposed by the Defendant on the Plaintiff.

Preliminaryly, the Defendant’s imposition of the value-added tax of KRW 00,000,00 (including the additional tax), the value-added tax of KRW 00,000 (including the additional tax), the value-added tax of KRW 00,000,000 (including the additional tax), the value-added tax of KRW 00,000,000 (including the additional tax), the corporate tax of KRW 0,000,000 (including the additional tax) for the business year of 2008, May 21, 2012, each disposition of imposition of KRW 0,000,000 (including the additional tax) for the second year of 209, May 21, 2012, is revoked.

1. Details of the disposition;

A. (1) The Plaintiff is registered as the largest shareholder holding 00,000 shares issued by AA Construction Co., Ltd. (hereinafter referred to as “A”) in the register of shareholders (0.00%).

(2) AA, as described in the purport of its claim, failed to pay the value-added tax for the second and second years of 2008, 1 and 209, and corporate tax for the business year of 2008.

B. Accordingly, the Defendant designated the Plaintiff as the secondary taxpayer, and paid and notified each of the value-added tax and corporate tax including the additional dues as indicated below to the Plaintiff (hereinafter “instant disposition”) as of September 4, 2009 and May 21, 2012.

Items of Taxation

Taxation Period

Amount of the secondary tax liability designated;

Amount of tax

Additional Dues

Date of notification of secondary tax liability;

1

Value-added Tax

2, 2008

00,000,000 won

00,000,000 won

0,000,000 won

4, 209.9

2

Value-added Tax

2, 2008

00,000,000 won

00,000,000 won

0,000,000 won

3

Corporate Tax

Business year of 2008

0,000,000 won

0,000,000 won

00,000 won

4

Value-added Tax

1, 2009

00,000,000 won

00,000,000 won

00,000 won

5

Value-added Tax

2, 2009

0,000,000 won

0,000,000 won

00,000 won

May 21, 2012

C. (1) The Plaintiff is dissatisfied with the instant disposition and filed an objection on January 8, 2013, but on January 1, 2013.

22. A decision of dismissal was made by the Defendant on the ground that the period of filing a lawsuit was expired.

(2) The Plaintiff requested for adjudication on April 9, 2013, but was dismissed by the Tax Tribunal on January 20, 2014 on the ground that the period for filing a lawsuit was elapsed.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 12, 13-1, 2, 14 of evidence No. 13, Eul evidence No. 1-1, 2, 5 through 8, 11 of evidence No. 1, and the purport of the whole pleadings

2. The plaintiff's assertion

In order to impose secondary tax liability on an investor, it must be the oligopolistic shareholder who has more than 50/100 of the total number of shares issued by the corporation or the total amount of investment of the corporation in question and exercises substantial rights thereto. The actual representative of AA is the Plaintiff’s DongB, and the Gangwon voluntarily registered the Plaintiff as a major shareholder of AA in the register of shareholders. Therefore, it is apparent that the Plaintiff is not an oligopolistic shareholder of AA, and there is a serious and apparent defect that the instant disposition is not an oligopolistic shareholder of AA. Therefore, the instant disposition is primarily seeking nullification of the instant disposition and seek revocation in the sense of the declaration of invalidation.

3. Related statutes;

It is as shown in the attached Table related statutes.

4. Judgment as to the main claim

A. Article 39(1)2 of the Framework Act on National Taxes (Amended by Act No. 9911, Jan. 1, 2010)

Whether it is a prescribed oligopolistic shareholder or not shall be determined by whether it is a member of a group owned by a majority of shares, and in detail, even if there is no fact that it is involved in the management of the company.

(2) No person shall be deemed to be an oligopolistic shareholder, and the fact of ownership of shares shall be proved by the data, such as the register of shareholders, the statement of stock transfer status, or the register of corporate register, etc.: Provided, That even in cases where a shareholder appears to be a single shareholder in light of the above data

under the circumstances such as being registered in a name other than the name of the actual owner, only if any;

No sole name may be deemed to constitute a shareholder, but the nominal owner claiming that the shareholder is not a shareholder.

(1) A person shall prove (see Supreme Court Decision 2003Du1615, Jul. 9, 2004).

Meanwhile, it is insufficient to say that a disposition of taxation is void as a matter of course only by the fact that there is an unlawful ground for the disposition, and it should be objectively clear that the defect violates an important statute and objectively. In determining whether the defect is significant and obvious, it is necessary to reasonably consider the purpose, meaning, function, etc. of the laws and regulations, which serve as the basis for the pertinent disposition, from a teleological perspective as well as to reasonably consider the specificity of the specific case itself. A disposition of taxation conducted on a person who does not have any legal relations or factual relations, which are subject to taxation, should be serious and obvious. However, in a case where objective circumstances exist that make it possible to believe that it is subject to taxation as a matter of course with respect to any legal relations or factual relations which is not subject to taxation, if it is apparent that the defect is obvious even if it is serious, it cannot be deemed that the unlawful disposition of taxation, which misleads the fact of taxation, is void as a matter of course (see Supreme Court Decision 2011Du2723, Feb. 23, 2012).

B. Although the instant case was not a shareholder of AA, as alleged by the Plaintiff, even though it was indicated that the Plaintiff owned 15,00 shares on the shareholder registry of AA as above, it is reasonable to deem that the Defendant, barring any special circumstance, was unaware of the Plaintiff as an oligopolistic shareholder of AA and did not have any other reason to designate and impose tax as the secondary taxpayer. Therefore, as long as the legal relationship or factual relations subject to taxation were accurately examined and the substance was not revealed, it is deemed that there was objective circumstance to mislead the Plaintiff, unless it was revealed. Therefore, even if the tax authority imposed tax on the Plaintiff, who was not an oligopolistic shareholder, even if it was unlawful for the Plaintiff,

Therefore, the plaintiff's primary claim is without merit.

5. Determination on the conjunctive claim

A. The defendant's assertion

A tax notice on the instant disposition was served lawfully, and the Plaintiff raised an objection on January 8, 2013 after the lapse of 90 days from the Plaintiff. As such, the conjunctive claim part of the instant lawsuit is unlawful as the filing period design.

(b) Fact of recognition;

(1) On September 4, 2009, the Defendant sent a tax payment notice to the Plaintiff by registered mail at OO-7 OO apartment No. 20-7 OO apartment No. 000, which is the Plaintiff’s domicile on the Plaintiff’s resident registration. The above tax payment notice was served on September 7, 2009.

(2) On April 24, 2012, the Defendant sent a tax payment notice to the Plaintiff by registered mail at KRW 00,000,000,000, which is the Plaintiff’s domicile on the Plaintiff’s resident registration, and the said tax payment notice was returned to the Plaintiff on April 27, 2012. On May 16, 2012, the Defendant sent a tax payment notice to the Plaintiff at KRW 00,000,000,000, which is the Plaintiff’s former domicile on the Plaintiff’s resident registration (0,000 apartment), and the said tax payment notice was returned to the Plaintiff on May 21, 2012, the Defendant served a tax payment notice by publication on the ground that the address is unclear to the Plaintiff on May 21, 2012.

(3) At the time of filing an objection and a petition for adjudication, the Plaintiff stated the address as '00 00 Gun 00 Gun 000 Gun 54,000 Gun 54.

(4) The Plaintiff’s domicile on the resident registration is as follows.

householder Name

Transfer Date

Date of Change

Grounds for change

Address

November 12, 2008

November 12, 2008

Transfer

00 00 - 00 - 00 - (00/0)

August 4, 2009

August 4, 2009

Transfer

00:00 00 00-0 (0/0) 00 00 00

August 7, 2009

August 7, 2009

Correction of householder's Name

“”

November 18, 2009

November 18, 2009

Transfer

00 00 - 00 - 00 - (00/0)

July 19, 2010

July 19, 2010

Correction of Actual Parcel Number

00 00 - 00 - 00 -00-0 (00/0)

October 31, 201

October 31, 201

Road Name Address

00 00 Gun 00 000 Dog 000

[Reasons for Recognition] Each entry of evidence Nos. 2, 3, 6, and 10 (including paper numbers), the purport of the whole pleadings

C. Determination

(1) In a case where a lawsuit seeking revocation is filed in the sense of declaring the invalidity of an administrative disposition, the procedure of the previous trial and the compliance with the period for filing the lawsuit must meet the requirements for filing the lawsuit seeking revocation (see Supreme Court Decisions 90Nu1892, Aug. 28, 1990; 84Nu175, May 29, 1984).

(2) The notice of tax payment dated September 4, 2009 was not confirmed by the health team, the place of service and the recipient as a certificate of postal delivery; however, the place of service is consistent with the resident registration address; service information of post offices and the National Tax Service Integrated System (TIS) are linked to each other; postal items are registered.

Unless there exist special circumstances such as return, etc., a delivery should be deemed to have been made to an addressee at that time (see Supreme Court Decision 2007Da51758, Dec. 27, 2007).

Considering the above, it is reasonable to view that the tax payment notice was lawfully served on the Plaintiff on September 7, 2009, and therefore the period for filing a lawsuit was lawful.

(3) On May 21, 2012, Article 11(1)2 of the Framework Act on National Taxes provides that "if the address or place of business of the person who is obligated to receive service with due care as a good manager is unclear, it refers to a case where the tax authority examines the address or place of business of the person who is obligated to receive service with due care, but such address or place of business cannot be known" (see Supreme Court Decision 97Nu17575 delivered on June 12, 1998), and Article 26 of the Enforcement Decree of the Framework Act on National Taxes provides that "the defendant is not aware of the address or place of business of the person who is obligated to receive service with due care as a resident registration card, corporate registry, etc." (see Supreme Court Decisions 92Nu4246 delivered on July 10, 192; 83Nu97 delivered on May 22, 1983; 209Nu31971 delivered on May 9, 1984).

(4) Therefore, the preliminary claim seeking the revocation of the instant disposition is unlawful as the Dog of the filing period.

6. Conclusion

Therefore, the part of the conjunctive claim in the lawsuit of this case is unlawful, and it is dismissed as the plaintiff's primary claim is without merit. It is so decided as per Disposition.