Cho-2015-China-1472 ( November 16, 2015)

Whether it can be seen as an oligopolistic stockholder in the form of

A person who lends only the name of promoters at the time of incorporation does not actually acquire stocks, participate in the operation of the company, or receive dividends, and if the founder engages in a business separately, he/she shall not be deemed a shareholder if he/she is voluntarily listed in

Article 39 (Secondary Liability to Pay Taxes by Investor)

Incheon District Court-2016-Gu Partnership-272 (Law No. 13, 2017)

GaO

O Head of tax office

2017.05.25

oly 2017.13

1. Of the instant lawsuit, the part of the claim for revocation of the disposition imposing KRW 277,010, which was occasional retirement income tax of March 2014 (including additional dues; hereinafter the same shall apply) and occasional corporate tax of KRW 58,920 (including additional dues; hereinafter the same shall apply) shall be dismissed.

2. The Defendant’s imposition of value-added tax of 40,653,30 won on September 18, 2014, value-added tax of 40,653,30 won on an occasional basis in December 2013, value-added tax of 4,143,670 won on an occasional basis in March 2014, value-added tax of 1,428,460 won on earned income, value-added tax of 11,919,70 won on an occasional basis in June 2014, value-added tax of 1,315,280 won on an occasional basis in August 2014, value-added tax of 6,125,940 won on an occasional basis in September 2014, and of 661,980 won on earned income tax.

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

1. Basic facts and circumstances of dispositions;

가. 원고는 주식회사 ○○토건(변경 전 상호: 주식회사 □□□□토건, 이하 '○○토건'이라 한다)의 대표이사인 전△△의 제수(弟嫂)이고, 2004. 3. 10.부터 2007. 3. 10.까지 감사로 등재되어 있던 사람이다. 원고는 ○○토건 설립 당시인 2004. 3. 10. 3,000주를 인수하고, 2005. 1. 8. 유상증자시 30,000주, 2013. 7. 27. 유상증자시 21,450주를 각 인수하여 총 27.5% 지분을 소유한 주주로 등재되어 있었다.

B. On September 18, 2014, the Defendant: (a) deemed the Plaintiff as an oligopolistic shareholder; (b) designated the Plaintiff as the secondary taxpayer for tax payment; (c) imposed on December 2013 the amount of value-added tax 40,654,440 won in arrears calculated according to the Plaintiff’s share ratio; (d) the amount of value-added tax 4,143,670 won in arrears; (b) the amount of income tax 1,428,460 won in March 2014; (c) the amount of income tax 58,920 won in retirement income; and (d) the amount of corporate tax 27,019,70 won in May 2014; and (e) the amount of value-added tax 1,315,280 won in June 2014, the amount of occasional wage and salary income tax 6,125,400 won in September 25, 2014; and (e) imposed the amount of tax 96 won.

C. The Plaintiff filed an objection against the Defendant on November 6, 2014, but was dismissed on December 5, 2015, and filed an appeal with the Tax Tribunal on February 13, 2015, but was dismissed on November 16, 2015.

D. On November 26, 2014, the Defendant revoked the designation of the secondary taxpayer with respect to the Plaintiff’s occasional retirement income tax of KRW 58,920 on March 2014, and the occasional corporate tax of KRW 277,010 on May 2014 (hereinafter referred to as “each of the instant dispositions”).

[Ground of recognition] Facts without dispute, Gap 1-3 (including branch numbers for those with a serial number; hereinafter the same shall apply), Eul 1-2, the purport of the whole pleadings

2. Determination as to the defendant's defense prior to the merits

A. Summary of the defendant's assertion

Since the Defendant revoked the designation of the secondary taxpayer on March 26, 2014 as the retirement income tax of 58,920 won and the occasional corporate tax of 277,010 won on May 2014 for the Plaintiff on November 26, 2014, the Plaintiff’s lawsuit seeking revocation of the disposition of imposition of retirement income tax and corporate tax is unlawful.

B. Determination

If an administrative disposition is revoked, such disposition is no longer effective and no longer exists, and a revocation lawsuit against a non-existent administrative disposition is unlawful as there is no benefit of lawsuit (see Supreme Court Decision 2009Du16879, Apr. 29, 2010). The Defendant’s revocation of the designation of the secondary taxpayer with respect to the Plaintiff’s temporary retirement income tax amounting to KRW 58,920, and the occasional corporate tax amounting to KRW 277,010, May 2014, as seen earlier, can be confirmed by the Defendant’s revocation ex officio revocation of the disposition imposing the above retirement income tax and corporate tax on the Plaintiff. Accordingly, the Defendant’s revocation of the disposition becomes null and void as the Defendant’s ex officio revocation of the disposition becomes null and void. Accordingly, the Defendant’s defense prior to the instant lawsuit is groundless as there is no benefit of lawsuit that does not exist any longer since the Defendant’s revocation of the disposition becomes void.

3. Whether each of the dispositions of this case is legitimate

A. Summary of the Plaintiff’s assertion

The Plaintiff is not a shareholder of ○○top. Around March 10, 2004, when the former △△△△, the Plaintiff’s deliberation-oriented shareholder, established ○○○○○ case, the Plaintiff lent the name of auditor. However, the former △△△△△ was forged and transferred shares in the name of the Plaintiff. Therefore, each of the dispositions of this case, which took place by deeming the Plaintiff as an oligopolistic shareholder and the secondary taxpayer, should be revoked accordingly.

Even if the Plaintiff’s provision of the certificate of seal impression and the certificate of seal impression at the time of the establishment of ○○ building on March 10, 2004 is recognized as the beneficial owner of 3,000 shares, since the Plaintiff did not provide it at any time when offering capital increase, the Plaintiff’s share ratio should be calculated based on the above 3,00 shares.

B. Determination

(1) Relevant legal principles

Determination as to whether a shareholder falls under an oligopolistic shareholder under Article 39 subparagraph 2 of the Framework Act on National Taxes shall be based on whether at least 51/100 of the total number of shares owned by a group in a special relationship is members of a group of shares owned by the relevant corporation. It does not need to be a person who, in fact, participates in the management of the relevant corporation and actually exercises the rights to the shares of at least 51/100 of the total number of shares issued by the relevant corporation. Meanwhile, the fact of ownership of shares should be proven by the tax authority based on the data, such as the list of shareholders, specifications of stock movement or the register of corporate register, etc., but even if it appears to be a single shareholder in light of the above data, the actual name alone cannot be deemed to fall under a shareholder, but the nominal shareholder who asserts that he is not a shareholder should prove (see, e.g., Supreme Court Decisions 2003Du1615, Jul. 9, 2004; 208Du983, Sept. 11, 2008).

In order to impose secondary tax liability on a shareholder of a corporation pursuant to Article 39 subparagraph 2 of the Framework Act on National Taxes, the oligopolistic shareholder is required to be able to participate in the operation of the corporation, and the fact that the shareholder registry is listed in the form of a company as a shareholder cannot be imposed solely on the ground that the shareholder registry of the corporation is registered. As such, in a case where a person who lends only the name of promoters at the time of incorporation upon the request of a founder who actually holds all the shares of the company is engaged in a business other than the company without any actual acquisition of shares or transfer of the company’s operation or transfer of the company, and the founder is arbitrarily registered in the shareholder registry (see, e.g., Supreme Court Decision 90Nu7821, Jun. 11, 19

(2) Review

Examining the above evidence and the following circumstances acknowledged by the purport of the entire statements and arguments set forth in the above-mentioned evidence, it is reasonable to view that the Plaintiff is a mere shareholder in the form of ○○top. Therefore, each disposition of this case based on the premise that the Plaintiff is a substantial shareholder is illegal.

① ○○토건은 2004. 3. 10. 원고의 남편인 전◇◇와 전◇◇의 형인 전△△가 공동으로 설립한 법인으로, 당시 전◇◇와 전△△가 의논하여 전△△의 아내인 오▤▤을 대표이사 및 주주로, 전◇◇와 또 다른 동생 전▨▨를 이사 및 주주로, 원고를 ○○토건의 감사 및 3,000주의 주주로 등재하기로 하였다.

② 전△△는 2013. 7. 27. 유상증자시 원고 명의의 주식인수증 및 신주식 청약서 각 1매를 위조하여 행사하였다는 범죄사실로 약식기소(인천지방법원 부천지원 2016고약1▤▤▤▤)되어 2016. 12. 2. 벌금 300만 원의 약식명령을 고지받았고, 정식재판(인천지방법원 부천지원 2016고정1▤▤▤)을 청구하여 2017. 2. 8. 벌금 70만 원을 선고받아 위 판결이 2017. 2. 16. 확정되었다. 위 사건의 경찰 조사과정에서 전△△는 ○○토건 설립당시 전◇◇와 논의하고 원고의 인감도장 등을 받았지만 주식과 관련하여 직접 원고에게 이야기를 해 준 적은 없다고 진술하였고, 유상증자시에도 각 주주 명의로 법인계좌에 무통장입금하는 방식으로 자신의 계산으로 주금을 납입하였다는 취지로 진술하였다. 위 진술은 원고 및 전◇◇의 진술과도 대체로 일치하는 등(다만 2005. 1. 8. 유상증자시의 자금출처가 전△△인지 전◇◇인지에 관하여는 전△△와 전◇◇의 진술이 일치하지 아니한다), 특별히 그 신빙성을 의심할 만한 자료가 없다.

③ At the time of the establishment of “○○○ Party”, the former △△△ Party entered the Plaintiff’s name in the register of shareholders by stealing the Plaintiff’s name at the time of the two-time capital increase offering, and also prepared a confirmation of the fact that the former △△△ Party had exercised its voting rights in the Plaintiff’s name. There was no obvious motive for the former △△△ Party to make a false statement at the risk of tax disadvantage and criminal punishment, thereby favorable to the Plaintiff.

④ During the police investigation process of the instant criminal case, ○○○ building was registered as an auditor and a shareholder without providing detailed explanation to the Plaintiff at the time of establishment of ○○○ building. However, ○○○ building was registered as an auditor and a shareholder by requesting a seal imprint and a certificate of personal seal impression. Since then, △△△△ became a sole operator of ○○ building, the former △△△△△ became disqualified from participating

⑤ 2004년부터 2014년까지 전△△, 오▤▤, 전▨▨는 ○○토건으부터 급여를 지급받았으나, 원고는 급여를 지급받지 아니하였고, 배당을 받은 바도 없으며, 2007. 3. 10. ○○토건의 감사 지위에서도 퇴임하였다. 비록 원고가 당시 감사 퇴임 이외에 주식의 명의개서를 별도로 요구하지는 아니한 것으로 보이나, 앞서 본 바와 같은 사정에 비추어 보면 원고가 자신이 주주로 등재된 사실 자체를 알지 못하였을 가능성도 충분하다 (전△△ 또한 위 형사사건의 경찰조사 과정에서 그와 같은 취지로 진술한 바 있다).

⑥ 한편 원고는 1999. 6. 28.부터 2011. 10. 21.까지 '▧▧중기'라는 상호로 건설기계 대여업 등을 영위하였는바, ○○토건의 경영에 관여하지 아니하고 별개의 생업에 종사하였던 것으로 볼 여지가 있다.

3. Conclusion

Therefore, the part of the claim for revocation of the disposition of occasional retirement income tax of 58,920 won in March 2014 and the occasional corporate tax of 277,010 won in May 2014 among the lawsuit in this case is dismissed as unlawful, and the remainder of the claim is with merit, and it is decided as per Disposition by the Supreme Court Decision that all the costs of lawsuit shall be borne by the defendant pursuant to Article 32 of the Administrative Litigation Act.