2013 Middle 2332 ( July 3, 2013)

It is reasonable to designate the plaintiff who is an oligopolistic stockholder on the register of shareholders as the secondary tax obligor.

The instant disposition is legitimate on the ground that the Plaintiff was liable for secondary tax liability on the delinquent corporation’s tax amount due to the oligopolistic shareholder’s shares in the position of oligopolistic shareholder of the delinquent corporation, as the Plaintiff failed to present specific and objective evidence to prove that the Plaintiff was a shareholder under its name or obtained the identity theft.

Article 39 (Secondary Liability for Tax Payment of Investor)

2013Guhap3239, revocation of disposition imposing value-added tax, etc.

IsaA

port of origin

November 13, 2013

January 8, 2014

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

On December 24, 2012, the defendant designated the plaintiff as the second taxpayer of BB Construction Co., Ltd. and revoked each disposition listed in the separate sheet.

1. Details of the disposition;

A. BB Construction Co., Ltd (hereinafter “CC Construction Co., Ltd. prior to the amendment”) was a corporation that has operated painting construction business from October 13, 2006 to June 30, 2012, and was in arrears with the total amount of value-added tax from July 201 to January 2012, 201, and the total amount of wage and salary income tax from July 2010 to January 2012.

B. On December 24, 2012, the Defendant determined that the Plaintiff was an oligopolistic shareholder (30%) of the delinquent corporation, and accordingly, designated the Plaintiff as the secondary taxpayer pursuant to Article 39(1) of the former Framework Act on National Taxes (amended by Act No. 11845, May 28, 2013; hereinafter “Framework Act on National Taxes, regardless of whether it was before or after the amendment,” and imposed on the Plaintiff the amount of tax equivalent to the Plaintiff’s share in the amount of tax in arrears (hereinafter “instant disposition”).

C. On January 15, 2013, the Plaintiff, who was dissatisfied with the instant disposition, filed a request for an inquiry with the Tax Tribunal on April 24 of the same year, but was dismissed on July 3 of the same year.

[Ground of recognition] Facts without dispute, Gap evidence 1, 3, Eul evidence 1 and 5 (including additional number), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff did not know at all the fact that the Plaintiff owned the shares of the delinquent corporation even before receiving the notice of the instant disposition. Therefore, the instant disposition that was based on the premise that the Plaintiff, a mere shareholder of the form, is a substantial shareholder of the delinquent corporation is unlawful

(b) Related statutes;

It is as shown in the attached Table related statutes.

(c) Fact of recognition;

1) On June 18, 2008, the Plaintiff entered into a contract with DaD to acquire 6,000 shares of a delinquent corporation (hereinafter “instant shares”), which were owned by DoD, and both the Plaintiff’s husband and NewGG, the wife of Y and Y, the yellow F and Y, also acquired the shares of the delinquent corporation, along with the Plaintiff around that time.

2) From around June 2008 to June 30, 2012, the status of ownership of a delinquent corporation is as follows.

Stockholders

Relationship with the Plaintiff

Number of shares (number of shares)

Equity Holdings

NewG

동서(同壻)

4,000

20%

Principal

6,000

30%

Yellow E

husband

6,000

30%

YFF

시숙(媤叔)

4,000

20%

Total

20,000

100%

3) The statement of changes in stocks, etc. of a delinquent corporation (Evidence No. 2) states that the Plaintiff acquired the instant stocks in the business year 2008, and the transcript of the corporate register of the delinquent corporation states that sulfurE, the husband of the Plaintiff, takes office as a director of the delinquent corporation from the time when he/she acquired the stocks of the delinquent corporation.

4) Meanwhile, on November 13, 2013, the Plaintiff appeared on the second date for pleading, and stated that, on the second date for pleading, the Plaintiff was aware of the Plaintiff’s husband’s report on the registration of the instant stock list or on the statement of the change in stocks, etc.

[Reasons for Recognition] Each of the evidence, Gap evidence Nos. 2, Eul evidence Nos. 2 and 3 as mentioned above

D. Determination

1) Whether it constitutes an oligopolistic shareholder under Article 39(1)2 of the Framework Act on National Taxes shall be determined by 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 shall not be determined whether it is an oligopolistic shareholder. The fact of ownership of stocks shall be proven by the tax authority through the data such as the register of shareholders, the statement of stock transfer status, or the register of corporate register, etc. However, even if 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 not be deemed that the nominal shareholder who asserts that he is not a shareholder. In addition, it does not necessarily require the actual exercise of shareholder's right, and it shall be deemed sufficient if he is in a position to exercise shareholder's right as to the stocks owned as of the date of establishment of the tax liability (see, e.g

2) In light of the above legal principles, the Plaintiff was the spouse of Yellow E, a director of the defaulted corporation, and owned the instant shares on the shareholder registry during the instant disposition period. In light of the relationship between the Plaintiff and Yellow E, the process of acquiring the instant shares, the organization of stockholders of the delinquent corporation, and the status of stockholding, etc., it is difficult to deem that the Plaintiff was unaware of the ownership of the instant shares until the time of the instant disposition. ③ Even if the Plaintiff did not actually participate in the management of the delinquent corporation, it is reasonable to deem that the Plaintiff was an oligopolistic shareholder of the delinquent corporation, who was a member of the oligopolistic shareholder group, who could actually exercise the right to the instant shares, to assume secondary tax liability as the oligopolistic shareholder of the delinquent corporation. ③ The Plaintiff did not have any legal action, such as filing a complaint against the acquisition and transfer of the instant shares by forging Co., Ltd., (4) The Plaintiff was merely a shareholder in the form of a separate company other than the delinquent corporation, and thus, it is difficult to find that the Plaintiff was not obligated to pay taxes on the Plaintiff’s stocks.

3. Conclusion

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