of the oligopolistic shareholders who are subject to the secondary tax liability.

In fact, the argument that the person does not belong to the oligopolistic shareholder who is not the owner of shares and is not the second tax liability is insufficient to recognize the existence of the above special circumstances only with the evidence submitted, and there is no other evidence to acknowledge it.

Article 39 (Secondary Liability to Pay Taxes by Investor)

2014Guhap70310

○ ○

○ Head of tax office

April 30, 2015

June 4, 2015

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

Cheong-gu Office

On October 0, 2014, the Defendant designated the Plaintiff as the secondary taxpayer of ○○○○ Company and revoked the Plaintiff’s notice of payment of KRW 000 of corporate tax for the business year 2010 and KRW 000 of value-added tax for the second period of 2010.

1. Details of the disposition;

A. Nonparty ○○ Co., Ltd. (representative: ○○○○○, hereinafter referred to as “Nonindicted Company”) did not pay KRW 000 of corporate tax for the business year 2010 and KRW 000 of value-added tax for the second period of 2010.

B. As of the date on which the above tax liability is established, the Defendant considers that the Plaintiff is an oligopolistic shareholder holding 60% of the shares of the non-party corporation as of the date on which the above tax liability is established, and thus, the Plaintiff is designated as the secondary taxpayer of the non-party corporation pursuant to Article 39(1)2 of the former Framework Act on National Taxes (amended by Act No. 11124, Dec. 31, 201; hereinafter “former Framework Act on National Taxes”). The Plaintiff is designated as the secondary taxpayer of the non-party corporation, and the Plaintiff

Do corporate tax of KRW 000 and value-added tax of KRW 000 for the second period of 2010 were notified (hereinafter referred to as the "instant disposition").

C. The Plaintiff dissatisfied with the instant disposition and brought an appeal with the Tax Tribunal on October 0, 2014.

B. On October 00, 2014, a decision of dismissal was issued.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

At the time of incorporation of the non-party company, the plaintiff became a second shareholder of 30% of the shares issued by the non-party company at the request of the non-party company at the time of incorporation, and around October 00, 2010, the plaintiff returned the shares in the name of the non-party company and changed the name of the transferor and the transferee under the contract for acquisition of shares by de facto water. The appearance of the plaintiff seems to have been held 60% of the shares issued by the non-party company. However, in fact, since the plaintiff is not the plaintiff but the second tax liability, it does not constitute an oligopolistic shareholder with the second tax liability.

B. Relevant statutes

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

C. Determination

1) Relevant legal principles

Article 39(1)2(a) of the former Framework Act on National Taxes provides that “A person who actually exercises the rights to shares or equity shares exceeding 50/100 of the total number of shares issued by the relevant corporation or the total amount of equity investment in the relevant corporation among the oligopolistic shareholders shall be subject to secondary tax liability.” In this case, “Exercise of rights to shares exceeding 50/100” does not necessarily require that the actual exercise of shareholders’ rights should be carried out. It is sufficient that a person is in a position to exercise shareholders’ rights to the shares held as of the date the tax liability is established, and whether a person is an oligopolistic shareholder is a member of a group of shares owned by the majority, even if a person does not participate in the management of the company, it shall not be determined that the person is not an oligopolistic shareholder. However, even if a shareholder appears in light of the above data, it shall not be deemed that the person is an oligopolistic shareholder if he/she uses the name of the shareholder or is registered under a name other than the name of the de facto shareholder.”

2) In the instant case:

In light of the above legal principles, it is recognized that the Plaintiff was in a position to exercise shareholders' rights as an oligopolistic shareholder of the non-party company, as stated in the above specification, in full view of the following facts: (a) the Plaintiff was in a position to exercise shareholders' rights as a oligopolistic shareholder of the non-party company, and (b) the Plaintiff’s assertion that the Plaintiff was in a position to exercise shareholders’ rights as a oligopolistic shareholder of the non-party company as stated in the above specification, barring any special circumstance, since the Plaintiff did not temporarily possess shares of the non-party company from October 0, 207 to October 0, 2010, and 60% of the shares issued by the non-party company from October 0 to October 0, 2011.

However, considering the following circumstances, Gap's evidence Nos. 3, 4, 8, and 11, Eul's evidence Nos. 3 through 6, and 8, and the overall purport of testimony by witness Nos. 1, i.e., "transferr" (hereinafter referred to as "this case's acquisition of shares") between the plaintiff and non-party No. 2 on Oct. 0, 2010: this is indicated as "the plaintiff": Eul's transfer of shares to the plaintiff; Eul's payment of the price to Gap for the above 00's long-term business (this case's acquisition of shares was 00). It is hard to find that the plaintiff No. 2, the transferee of the above 00 company's sales contract, and the transferee of the above 100 company's sales contract, based on the premise that the transferee of the above 00 company's acquisition of shares had no authority over the above 00 company's acquisition of shares.

Therefore, the plaintiff's assertion is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.