Gwangju District Court-2014-Gu Partnership-10394 ( October 17, 2014)

early 2012 Mine3844 (Law No. 101.02)

the transfer of shares does not constitute a false or fictitious transfer;

It is difficult to view that the transfer of shares constitutes false or most transfer, so that disposition designated as the second taxpayer is illegal.

Article 39 of the Framework Act on National Taxes

2014Nu5933 Revocation of Disposition of Corporate Tax Imposition

○ Stock Company

○ Head of tax office

Gwangju District Court Decision 2014Guhap10394 Decided 17, 2014

2015.026

2015.03.19

1. The defendant's appeal is dismissed.

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

1. Purport of claim

On June 20, 2012, the Defendant: (a) designated the Plaintiff as the secondary taxpayer on June 20, 2012 by ○○ Management Corporation; and (b) revoked the imposition disposition of KRW 2,172,525,425 against the Plaintiff.

2. Purport of appeal

The judgment of the first instance is revoked, and the plaintiff's claim is dismissed.

1. Quotation of judgment of the first instance;

The reason why the court should explain this case is as stated in the reasoning of the judgment of the court of first instance (including relevant statutes) except for adding the judgment specified in Paragraph (2) below, and therefore, it refers to Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

2. Additional determination

A. The new argument in the defendant's trial

1) The instant transfer of shares is null and void as an anti-social juristic act, and even if not, in light of the principle of substantial taxation, the Plaintiff should be deemed to bear the secondary tax liability as an oligopolistic shareholder.

2) The Plaintiff is a liquidator prescribed in Article 38 of the Framework Act on National Taxes and bears secondary tax liability within the scope of distribution of residual property. Thus, the instant disposition is lawful within the scope of the Plaintiff’s above tax liability.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

1) Whether the transfer of shares in this case is null and void as an anti-social juristic act

Even though the contents of rights and obligations, which are the object of a juristic act, are not anti-social order, where the motive for the juristic act indicated or known to the other party in the course of the juristic act is contrary to good morals and other social order, it may be included in the act of anti-social order that is null and void pursuant to Article 103 of the Civil Act (see, e.g., Supreme Court Decision 2005Da23858, Jul. 28, 2005). In this case, there is no dispute between the parties to the transfer of shares for the purpose of evading tax obligations, and according to the evidence Nos. 13 through 15, the corporate tax of this case was imposed upon the transfer of land and business rights. ① The direct cause of the failure to pay the corporate tax of this case is the representative director of the previous juristic person and the representative director of the company in arrears, who was the representative director of the previous juristic person in arrears, and it appears that the Plaintiff and the transferee of the corporation actively refused to transfer shares of the Plaintiff in violation of Article 462-2(2).

However, the following circumstances are acknowledged based on the evidence Nos. 9 and 18 of this case, the testimony and the whole purport of argument by the witness of the party concerned, and the transfer of shares of this case is made with the permission of the rehabilitation court in order for the plaintiff under the corporate rehabilitation procedure to be exempted from the liability to pay the corporate tax to be imposed on him as an oligopolistic shareholder (the corporate rehabilitation procedure was concluded after the authorization of the rehabilitation plan was granted, the third party who invested the funds was acquired by the plaintiff company), and the plaintiff who was in the process of the rehabilitation procedure under the (b) disposal of shares with no economic value (the assessment value per share of the delinquent corporation as of December 22, 2010 is zero won) is deemed to be favorable to the authorization of the rehabilitation plan. In light of the above circumstances, it is difficult to view that the transfer of shares of this case constitutes a false or fictitious transfer, the above assertion by the defendant is without merit.

2) Whether the Plaintiff bears the secondary tax liability as an oligopolistic stockholder in light of the principle of substantial taxation, etc.

The substance over form principle under Article 14(1) of the Framework Act on National Taxes, in cases where there is a person to whom such income, profit, property, transaction, etc. belongs differently from the nominal owner, the nominal owner on the ground of form and appearance shall be the person to whom such income, rather than the nominal owner is the person to whom such income, belongs. Thus, in cases where the nominal owner is not capable of controlling and managing the property, and there is another person who substantially controls and manages the property through the control, etc. over the nominal owner, and where such disparity between the nominal owner and the substance arises from the purpose of tax evasion, the income on the property shall be deemed to have been reverted to the person who actually controls and manages the property, and the person to whom the income belongs shall be the person to whom the income belongs. However, in cases where such disparity between the nominal owner and the substance exists, the determination should be made by comprehensively taking into account all the circumstances such as the process and purpose of acquiring the relevant property, the source and process of management of the acquisition fund, the ability of the nominal owner, and control relationship with them (see, e. 2).

In light of the above legal principles, it is difficult to see that the transfer of shares of this case constitutes a false or fictitious transfer, as seen earlier, and it is difficult to recognize that the shares sold to the above transferee are actually reverted to the plaintiff because it is difficult to see that the transferee is merely a partner of the plaintiff's partner, and it is difficult to see that the shares sold to the above transferee are actually reverted to the plaintiff because it is not under the complete control of the plaintiff. In addition, in light of the above legal principles, even if the transfer of shares for the purpose of evading tax liability is an act for tax avoidance, there is no separate provision that can deny its validity under the Framework Act on National Taxes or the Corporate Tax Act, etc., the plaintiff cannot be deemed as

3) Whether the Plaintiff, as a liquidator, bears secondary tax liability within the scope of distribution of residual property

Article 38(1) of the Framework Act on National Taxes provides that "a person who has received or delivered property after liquidation of a delinquent corporation shall bear secondary tax liability, and the fact that the plaintiff received interim dividends from a delinquent corporation on December 20, 2010 does not conflict between the parties, but there is no evidence to acknowledge that the delinquent corporation was dissolved at that time or that liquidation procedures were completed accordingly (limited to rehabilitation procedures for the plaintiff, other than the delinquent corporation), and the defendant's above assertion is without merit.

3. Conclusion

Therefore, the judgment of the first instance court that revoked the disposition of this case is justifiable, and the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition.