Seoul Administrative Court 2013Guhap23041 ( October 19, 2015)

It shall not be deemed as an oligopolistic stockholder.

Although the shareholder registry was registered as a shareholder in the shareholder registry, it is reasonable to deem that such registration was made under the title trust of the beneficial ownership of the shares, and therefore, it cannot be deemed as an oligopolistic shareholder.

2015Nu52137 Revocation of secondary taxation

Plaintiff (Appellant)

IsaA

Defendant (Appellant)

Head of the District Tax Office

March 15, 2016

April 26, 2016

1. Revocation of a judgment of the first instance;

2. A secondary taxpayer tax imposed by the Defendant on the Plaintiff, including the claim extended at the trial.

Each disposition of imposition Nos. 2 and 4 among the details of the disposition shall be revoked.

3. All costs of the lawsuit shall be borne by the defendant.

the Gu Office's place of service and place of service

The same as the order (the plaintiff shall be the first instance court with the exception of additional charges among the dispositions in attached Form 1.

Each taxation described in attached Form 1, including additional charges, shall be sought only for the portion to be revoked and in the case of a trial;

In order to seek the cancellation of the disposition, the purport of the claim is expanded, and the number Nos. 1 and 3 in the trial is set forth in the attached

By withdrawing a lawsuit against a disposition, the purport of the claim was partially reduced.

1. Details of the disposition;

A.OO Co., Ltd. (hereinafter referred to as "OO") on November 22, 2000; real estate development projects, etc.

and was declared bankrupt on August 27, 2014, the OOO was established on November 22, 2000 and was declared bankrupt.

In 2009, 84,058,967,310 won such as corporate tax was delinquent.

B. Accordingly, the defendant is an oligopolistic shareholder whose shares are owned by the plaintiff, newB or newCC (hereinafter referred to as "the plaintiff, etc.") who is the plaintiff's child, and a lineal ascendant or descendant who lives together with the plaintiff as to the corporate tax for the business year 2009 shall be amended by Act No. 9911, Jan. 1, 2010.

As to the remaining corporate tax or value-added tax, Article 39 (1) 2 of the Act on December 31, 201 is deemed to be the secondary taxpayer. Each corporate tax, value-added tax, and additional dues on the details of the tax assessment in attached Form 12 are paid and notified to the plaintiff, etc. (hereinafter referred to as the "instant disposition").

C. The Plaintiff et al. filed an appeal with the Tax Tribunal on May 10, 2012, and the Tax Tribunal.

A. On January 27, 2014, the Plaintiff’s appeal is dismissed, and the instant disposition is dismissed against NewB and NewCC.

the revocation decision was made.

[Grounds for Recognition] Unsatisfy, A1 through 14, 18 (if there are virtual numbers, including branch numbers)

C. Each entry of evidence Nos. 6 and 6, the purport of the whole pleadings

2. Whether the instant disposition 1 is lawful

A. The plaintiff's assertion

1) The Plaintiff, regardless of her husband’s intention, was registered as a shareholder on the register of shareholders at the time of the establishment of the OO by NewD, a husband, and did not acquire or exercise shareholder rights.

2) Although the Plaintiff is registered as an owner of 30% shares in the shareholder registry of the OOO, this is merely a lending of ownership upon the request of NewlyD, which is an actual owner of the said shares. Thus, the instant disposition based on the premise that the Plaintiff is an actual owner of the OOO’s shares is unlawful.

3) On the other hand, while the Defendant completed claims preservation measures, such as seizure, against the OO’s property worth approximately KRW 164.7 billion, it cannot be deemed that the OO’s property is insufficient to cover the delinquent tax amount. Accordingly, the instant disposition was unlawful since it did not meet the secondary taxpayer designation requirements.

4) The OOO was the executor of the business of newly building and selling 3,316 units of OO apartment units in the OO department at the time of OO. The sales contract was cancelled for 1,281 units among the 3,024 units of the 3,024 units of the sales household. If the effect of the cancellation of the sales contract is reflected retroactively, the imposition of corporate tax on OO is all unlawful, and the delinquent amount of corporate tax of OO, which is the original taxpayer, has disappeared, so the disposition of this case should also be revoked in its entirety.

(b) Related statutes;

Attached Form 2 shall be as stated in the relevant statutes.

C. Determination

We examine whether the Plaintiff received the title trust of the shares of this case from DaD, her husband.

1) The fact of ownership of shares is to be proved by the tax authority through the data, such as the list of shareholders, the statement of stock transfer or the certified transcript of corporate register, etc. However, even in cases where a single shareholder appears to be a single shareholder in light of the above data, where there are circumstances, such as where the actual shareholder was stolen or registered in the name other than the real shareholder ownership, the actual shareholder cannot be deemed to be a shareholder, but the nominal owner who asserts that he/she is not a shareholder should prove that he/she is not a shareholder (see, e.g., Supreme Court Decisions 2003Du1615, Jul. 9, 2004; 2008Du983, Sept. 11,

2) In full view of the following circumstances, comprehensively taking into account each of the evidence mentioned above and evidence Nos. 1, 7, and 10 as well as each of the testimony made by the lower court, the Plaintiff was registered as a shareholder in the shareholder registry of OOO, but it is reasonable to deem that the Plaintiff was registered under the title trust of newD, which is the actual owner of the shares. Thus, the Plaintiff cannot be deemed as an oligopolistic shareholder under Article 39(1)2 of the former Framework Act on National Taxes. The Defendant’s disposition based on the different premise is unlawful.

(A) On November 22, 200, OOO was established as KRW 100,00 capital. At the time of issuance of 10,000 shares, newD, the Plaintiff’s husband, owned KRW 5,00 (50%) 3,00 shares (30%), 3,00 shares (30%), audit consignment and audit consignment, and 1,000 shares (10%) and 1,000 shares (10%) respectively. NewD did not obtain prior understanding from the Plaintiff or subsequent consent, while accepting Drgz shares in the name of the Plaintiff, SongF and YellowG.

(B) On December 26, 2003, newD acquired 20% of shares in the name of SongF and YellowG, and acquired 20% of shares in the name of the Plaintiff, and donated 300 million shares out of 7,000 shares in the shares of newB and NewCC, a student, at the time of 2005, to the newB and newCC. After that, the OO made a capital increase by 300 million won with shares issued on July 26, 2007.

(C) At the time of the establishment of the OO, KRW 100 million capital was paid out of the one bank account under the name of newD on November 22, 2000. At the time of capital increase for consideration, KRW 200 million was withdrawn from the new bank account under the name of newD on July 25, 2007. The amount deposited out from the new bank account under the name of newD is presumed to be owned by newD unless there are special circumstances. Thus, it appears that OO’s capital was fully borne by newD.

(D) With respect to the tax appeal filed by the Plaintiff, etc. on the instant disposition, the Tax Tribunal rendered a decision to revoke the instant disposition against the newB and newCC on the ground that the newB and newCC, who is the Plaintiff’s child, are not a substantial shareholder of the OOOO, but merely a formal shareholder registered in the register of shareholders by newD. The Plaintiff was registered as a shareholder holding 30% shares since the establishment of the OOOO, and was registered as an auditor of the OOO from March 31, 2006. The Plaintiff’s property was seized in relation to the instant disposition.

(E) However, all of the Plaintiff et al. are the family members of DaD, a real operator of OOO, and there is difference between the time when the Plaintiff was granted shares from DoD in 2005 and the newCC held shares from 2005, and there is no evidence to deem that the Plaintiff did not exercise voting rights or directly participated in the management, etc. of OOOO as a shareholder at the shareholders’ general meeting as an executive officer, and that the Plaintiff was paid dividends or wages as an executive officer. Therefore, it is unreasonable to view the Plaintiff differently from B or Newly made solely on the ground that there is other earned income or property attached to the instant disposition.

(F) On December 23, 2011, the Plaintiff filed a lawsuit against OO for confirmation of the absence of a shareholder’s right to the instant shares and rendered a favorable judgment, and the said judgment became final and conclusive (Seoul Central District Court 201Da46465), and OOO is not a real shareholder of OOO, and there is a possibility that the Plaintiff would not dispute the said lawsuit because it is not a real shareholder of OOO, so it shall not be readily denied solely on the ground that the facts acknowledged in the said judgment were terminated without a substantial dispute between the parties.

(G) Meanwhile, from May 12, 2014, the Seoul Regional Tax Office conducted a tax investigation related to the stock title trust, etc. of △△ Construction Co., Ltd., an affiliated company of the OOOO, and then notified the result of the tax investigation that the shares transferred in the name of △△ Construction Co., Ltd. are the shares held in title trust by Doddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddd

(h) Since the Plaintiff, as an auditor of an OOO, issued his seal impression and a certificate of personal seal impression to a newD, there may be room to deem that the Plaintiff granted the right to representation regarding the acquisition of the Plaintiff’s shares under the Plaintiff’s name to the newD. However, such circumstance may rather be the basis for supporting that the Plaintiff was registered as a shareholder in the register of shareholders or that only the name of an executive was lent, without participating in the actual management of the company, as in the newB

(i) Even if the Plaintiff asserted title trust only when it was placed in the situation where the Plaintiff would be liable to pay taxes due to the name of the shares, since there was no particular loss to the Plaintiff’s individual due to title trust, it may be said that there was no substantial reason to assert title trust. As seen earlier, insofar as both the establishment of an OO and the fund for capital increase with consideration for new shares were created by a new D, the mere fact that the Plaintiff was living together with a new D cannot be recognized that the Plaintiff shared part of the fund.

3) Therefore, without having to examine the remainder of the Plaintiff’s remaining arguments, the instant disposition based on the premise that the Plaintiff is a beneficial shareholder of the instant shares is unlawful.

3. Conclusion

Thus, the plaintiff's claim of this case is justified, and the judgment of the court of first instance shall be accepted.

As the conclusion differs, it is unfair to cancel it and accept the plaintiff's claim.