Seoul Administrative Court 2008Guhap47487 ( November 11, 2011)

National High Court Decision 2002west 2036 (No. 17, 2003)

Since the secondary tax liability is established when the main taxpayer is delinquent, the time when the defendant becomes aware of the secondary taxpayer can not be seen as the starting date of exclusion period of imposition.

Y It is difficult to deem that the Plaintiff committed fraud or other unlawful act in order to avoid the secondary tax liability even though it was impossible to confirm whether the Defendant was an oligopolistic shareholder by title trust and maintenance of Y shares.

Article 39 of the Framework Act on National Taxes

2011Nu43012 Revocation of revocation of designation as a person liable for secondary tax payment.

Shin XX

Head of the tax office;

Seoul Administrative Court Decision 2008Guhap47487 decided November 11, 201

April 18, 2012

May 16, 2012

1. The defendant's appeal is dismissed.

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

1. Purport of claim

The defendant designated the plaintiff as the second taxpayer on February 13, 2008 and revoked the disposition of taxation listed in the separate sheet No. 1 (as to the claim for revocation of each disposition of taxation listed in the separate sheet No. 6,8,9, 11 and 12, the court of first instance dismissed the plaintiff's claim, but was excluded from the scope of this court's judgment because the plaintiff did not appeal against it).

2. Purport of appeal

The part against the defendant in the judgment of the first instance shall be revoked. The plaintiff's claim shall be dismissed.

1. The part citing the judgment of the court of first instance

The grounds for this Court’s decision are as follows, with the exception of dismissal as follows. The relevant part shall be cited pursuant to Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

The following shall take place from the 'A' to the 'the next 2th one at the time of the 3th following year:

The annual revenue amount of 199,00 won received in 200 won, and annual revenue amount of 2002, and thisA purchased 3,000 shares of Y on July 5, 1999, and acquired Y shares of 3,000 shares (0 won) in 2002, and EA acquired shares of 3,000 shares of OO shares of 3,000 shares (0 won) in the capacity of the corporation, and EA stated that EA paid 3,000 shares of Y shares of 3,00 shares of YO as the price for precious metals separately sold (Evidence No. 8) but EA stated that EA had no knowledge of the sales amount of YO shares of 3,00 shares of YO as the sales amount of YO shares of 3,00 shares of YO and it appears that EA appears that EA had no knowledge of 00 won in its possession (YO).

In addition, it can be recognized from the 4th fifth to the 9th to the 9th.

From the fifth 10th to the sixth 11th, the following shall apply:

3) Whether there is a defect in the notice of value-added tax against the plaintiff

According to Article 12 of the former National Tax Collection Act (amended by Act No. 10527, Apr. 4, 2011), when the head of a tax office intends to collect national taxes, surcharges, or expenses for disposition on default from the second taxpayer, he/she shall notify the second taxpayer of the payment by a notice stating the taxable year, additional dues, or expenses for disposition on default, amount of national taxes, tax base, payment period, place of payment, the amount to be collected from the second taxpayer, the basis for calculation, the basis for calculation, and other necessary matters. According to Article 9 of the Enforcement Rule of the same Act (amended by Ordinance of the Ministry of Finance and Economy No. 485, Feb. 9, 2006), according to Article 12 of the Act, the notice of payment is in accordance with attached Form 12 (paragraph (1)), and the notice of payment in paragraph (1) shall be accompanied by

In the case of value-added tax, it is necessary to indicate the taxable period in the remaining tax notice because the tax base and the amount of tax are calculated by calculating the tax amount by taxable period, and it is necessary to indicate the tax period.

The following facts are acknowledged in addition to the overall purport of the pleadings in the evidence Nos. 1, 9, and 22, and the Defendant notified Y from 200 to 202 with the notice of value-added tax for each taxable period, and Y was in arrears with all of the value-added tax for each taxable period. The Defendant notified the Plaintiff of the same content as the notice of value-added tax payment, and did not specify only the taxable year and specify the specific taxable period.

In light of the fact that the taxable period was not specified in the notice of tax payment as to the disposition of this case, it is reasonable to view that the Plaintiff, the shareholder of Y10% of the disposition of this case, did not interfere with the appeal against the disposition of this case, even though the notice of tax payment of this case was written only in the taxable year and did not specify the taxable period, and that the notice of tax payment of this case was written in the notice of tax payment of Y as well as the detailed details on the disposition of this case, including the taxable period, was already stated in the notice of tax payment of Y as specified in attached Form 12 of the notification of tax payment in attached Form 9 of the Enforcement Rule of the same Act. The JJ does not require cancellation of the disposition of this case as unlawful even though the notice of tax payment of this case was written only in the taxable year and did not specify the taxable period.

The term "related Acts and subordinate statutes" shall be added to the end of "O-Attached 2-related Acts and subordinate statutes", and the judgment on the defendant's assertion made at the trial of the trial of the court

A. The Defendant asserts that the period of exclusion has not expired since the initial date for the secondary tax liability of this case was February 13, 2008 when the Plaintiff became aware of the fact that the secondary tax liability of this case was the secondary tax obligor. The period of exclusion has not expired separately from the primary tax liability, and the period of exclusion is five years from the date when the secondary tax liability of this case was established, barring any special circumstance (see Supreme Court Decision 2006Du11750, Oct. 23, 2008). The secondary tax liability of the Plaintiff, regardless of whether the Defendant was aware of the secondary tax obligor, is in arrears with YY, and it cannot be deemed that the Defendant became aware of the secondary tax obligor. If the secondary tax obligor was aware of the initial date after the lapse of the period of exclusion for exclusion for imposition of gift tax as alleged by the Defendant, deeming the secondary tax obligor as the period of exclusion for imposition of gift tax to go against the essence of the statutory stability system, and the period of exclusion for exclusion for imposition of taxes, such as the taxpayer’s act of taxation and other unlawful method, etc.

B. The defendant asserts that since the plaintiff committed fraud or other improper acts, i.e., fraudulent means or other active acts that make it impossible or considerably difficult to impose and collect taxes, the second obligation to impose and collect taxes is subject to the exclusion period for imposition of taxes for a maximum of 10 years.

① The Plaintiff’s false entry of Y employee, etc. in the register of shareholders does not intend to avoid taxes. ② The Plaintiff denies the fact that the Plaintiff is an oligopolistic shareholder, rather than a title trust, in the closure of pleadings in the instant case. ③ The Plaintiff abused the zero-rate tax system, thereby obtaining illegal refund from the State. ④ The Plaintiff could have anticipated that the input tax deduction may be refused against Y due to the Plaintiff’s establishment of Y for the wrongful use of gold bullion. ⑤ ⑤ The Plaintiff entered false matters in the stock acquisition certificate, the general meeting minutes, the stock acquisition agreement, and the stock transfer statement to be submitted to the tax office for the purpose of title trust. ⑤ The Plaintiff maintained the external sales that prevents the Defendant from confirming oligopolistic shareholders due to title trust.

① The Plaintiff, before the taxable period of the instant corporate tax and value-added tax, title trust was established with shares. Even if the Plaintiff’s purpose of title trust was to avoid the secondary tax liability, it cannot be deemed that the Plaintiff evaded taxes by fraudulent or other unlawful act with the title trust act, and by means of deception or other unlawful act. ② In the process of tax litigation, it cannot be deemed that the Plaintiff did not receive any fraudulent or other unlawful act by abusing the zero-rate tax system. ③ Even if the Plaintiff received any illegal refund through abuse of the zero-rate tax system, the Plaintiff’s establishment of Y for the purpose of evading corporate tax and value-added tax, and there is no evidence to acknowledge that the Plaintiff was a title trust of shares. ⑤ Even if the Plaintiff entered false matters in the share acquisition certificate, general meeting minutes, share acquisition agreement, and share transfer statement, etc. to be submitted to the tax office, such act constitutes a stock title trust. ② Even if the Plaintiff failed to verify whether the Plaintiff was an oligopolistic shareholder by title trust and maintaining it, it is difficult to deem that the Plaintiff committed a second tax liability or other unlawful act.

3. Conclusion

The appeal is dismissed.