Early High Court Decision 2012J0819 ( October 13, 2012)

The claimant is designated as the second taxpayer by the person who is substantially oligopolistic shareholder.The notice of payment is legitimate.

In light of the judgment related to the purchase and sale of shares by the claimant, the number of shares issued by the delinquent corporation is shown to have been held by the claimant, etc., the claimant who is an oligopolistic shareholder as of the date when the liability to pay delinquent national taxes is established is designated as the

2012Gu Joint 11615 (Revocation, etc. of Disposition of Designation as Person Liable for Secondary Tax Payment

ThisAAA et al.

Head of Suwon Tax Office

May 29, 2013

July 3, 2013

1. All of the plaintiffs' claims are dismissed.

2. The costs of lawsuit are assessed against the plaintiffs.

On August 30, 2011, the Defendant designated the Plaintiffs as secondary taxpayers of BB Heavy Industries.

The imposition of the value-added tax for 271 minutes (payment period on December 31, 2008), 000 won, and 2008 calculated on February 31, 2008 (payment period on March 31, 2009), of the wage and salary income tax for 2000 won in October 2008, and the wage and salary income tax for 000 won in November 2008, and the wage and salary tax for 2000 won in corporate tax for 2008 and the wage and salary tax for 200 years in 208 against the PlaintiffCC (payment period on December 31, 2008), each of the imposition of the value-added tax for 200 won in 208 (tax payment period on March 31, 200), and each of the imposition of the wage and salary income for 200 years in 208 and 2008 years in 208.

1. Details of the disposition;

A. A. On August 3, 2005, the BB specialty Co., Ltd. changed the name on November 13, 2008 to BBB Heavy Industries Co., Ltd. (hereinafter referred to as the “instant corporation”). On November 13, 2008, the representative director of the Plaintiff OCC was established with the Plaintiff, the Plaintiff’s wife as the Plaintiff’s representative director, as the auditor, and the company was established with the body and special model manufacturing, etc. for business purposes.

B. The Defendant, on August 30, 201, failed to pay national taxes, as indicated in the column for ‘AAA', and on the ground that the Plaintiffs were the oligopolistic shareholders of the instant corporation at the time when the obligation to pay delinquent national taxes was established, the Defendant designated the Plaintiffs as the secondary taxpayer of the instant corporation, and imposed upon the Plaintiff EAA the same amount as indicated in the column for ‘AAA' designated portion, and upon the Plaintiff OCC, the amount of tax equivalent to the indicated in the column for ‘AA' designated portion of ‘AAAA' designated portion, respectively (hereinafter referred to as the “instant disposition”).

(3)

C. The Plaintiffs dissatisfied with the instant disposition and filed an objection on September 30, 201, but received a decision of dismissal, and filed an appeal with the Tax Tribunal on January 25, 2012, but received a decision of dismissal on June 13, 2012.

[Ground of Recognition] The non-contentious facts, Gap evidence 1 to 4, and Eul evidence 2 (including paper numbers, hereinafter the same shall apply), and the whole purport of the pleading

2. Whether the disposition is lawful;

A. The plaintiffs' assertion

The Plaintiffs agreed to transfer DoD, KimE, and the instant legal entity to FF on June 17, 2008. On July 18, 2008, the Plaintiffs sent transfer to Edd and Park GG on the shareholder registry of the instant legal entity. At the time of the establishment of the instant tax liability, the shareholders were not the Plaintiffs, and were not in the position of the de facto controller of the instant legal entity, and thus, the instant disposition imposed on the Plaintiffs was unlawful.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

(c) Fact of recognition;

1) On June 17, 2008, Plaintiff AA prepared a record of consultation with ED, KimE, and the Plaintiff’s transfer and acquisition of the instant corporation (hereinafter “instant transfer and acquisition agreement”), and the FF was recorded as the representative director of the instant corporation on June 17, 2008, and the F was recorded as the director on July 18, 2008. Plaintiff AA was issued a letter of commitment from ED and O on August 22, 2008, and the content of the letter of commitment are as follows.

(Contents) The following:

2) By September 5, 2008, IsD and KimE did not pay the purchase price to the Plaintiff A, and Plaintiff AA filed a lawsuit seeking payment of the purchase price against the FF on November 4, 2009, Park G, and LeeD (Seoul Northern District Court Decision 200971-Ban 56679). However, the above court determined that the transfer and acquisition contract of this case became null and void in accordance with the self-declaration as of August 22, 2008, on the ground that the purchase price was not paid by September 5, 2008.

3) On the other hand, at the time of the transfer and acquisition agreement of this case, there was a change in the number of shares held in the shareholder registry as it had 70% of the shares issued by the corporation of this case, and 10% of the shares issued by the corporation of this case, and that at the time when the temporary shareholders meeting was held on July 18, 2008, 8, 80% of the shares issued by the corporation of this case, and 20% of the shares issued by the corporation of this case, and there was a change in the number of shares held in the shareholder registry. However, according to the shareholders status of the corporation of this case submitted by the Defendant in 208 (base date December 31, 208), it is still confirmed that Plaintiff AA had 70% of the shares and 20% of the disease, and Plaintiff ACC had 10% of the shares, and there was no securities transaction tax related to the corporation of this case.

[Reasons for Recognition] The above evidence, Gap evidence 6, Eul evidence 7, Eul evidence 1, and 3

D. Determination

Article 39(1)2 of the Framework Act on National Taxes and Article 20.20 of the Enforcement Decree of the Framework Act on National Taxes are oligopolistic shareholders with a view to 51% or more of the total number of shares issued by a corporation, and imposing secondary liability for tax payment on such oligopolistic shareholders is deemed to have a position of de facto controlling the company's management through the exercise of voting rights at a general meeting of shareholders, etc. Accordingly, the exercise of rights over 51% or more as referred to in the above provision is not necessarily required to exercise shareholder rights, and it is adequate to exercise shareholder rights over the shares owned as of October 15, 200 (see, e.g., Supreme Court Decision 200Du8418, Oct. 10, 204). Meanwhile, the transfer of registered shares is 8G under this case's shareholder registry and at least 9G shareholders' rights are not deemed to have been transferred or acquired, and thus, it is not necessary to establish and exercise shareholder rights under this case's shareholder registry (see, e.g., Article 337).

3. Conclusion

Then, the plaintiffs' claims of this case are all dismissed as it is without merit. It is so decided as per Disposition.