The disposition of this case based on the premise that the plaintiffs are oligopolistic shareholders at the time when the company's liability to pay value-added tax was established is legitimate.

The Plaintiff appears to have participated in the process of the establishment of the instant case, and it is difficult to believe the Plaintiff’s assertion that only it was merely a representative director’s name or a formal acquisition of shares for the collection of loans.

Article 19 (Secondary Liability to Pay Taxes by Investor)

2016Guhap67548 Disposition to revoke the imposition of value-added tax

leap** Foreign1

*the Director of the Tax Office

June 20, 2017

August 8, 2017

1. The plaintiffs' claims are dismissed.

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

Cheong-gu Office

The imposition of value-added tax on May 24, 2016 by the Defendant against the Plaintiffs shall be revoked, respectively.

1. Details of the disposition;

A. U.S.*S.*S. (hereinafter referred to as the “instant company”) is a company established on November 11, 201 for the purpose of manufacturing, installing, and wholesale video camera, CCTV, and kitchen equipment. The instant company was established as capital of KRW 20 million on January 11, 2012, which increased capital by issuing capital increase of KRW 100 million, and the total issued capital increase from KRW 4,000 to KRW 20,000.

나. 원고 윤**는 이 사건 회사의 대표이사이자 설립 당시에는 총 발행주식 4,000주 전부를 소유하고 있던 1인 주주였고, 유상증자 이후에는 총 발행주식의 45%인 9,000주를 소유하고 있는 주주이다. 원고 윤@@는 2012. 2. 10.부터 현재까지 이 사건회사의 총 발행주식의 10%인 2,000주를 소유하고 있는 주주이자 원고 윤**의 아버지다.

C. The instant company’s value-added tax for the period from February 2, 2012 to February 2, 2013

The Defendant closed the business on December 31, 2013 without paying the cost (including additional tax) and closed down the business on December 31, 2013, deeming that the Plaintiffs were oligopolistic shareholders who owned 55% of the shares issued by the instant company and were secondary taxpayers, and on May 24, 2016, imposed and notified the Plaintiffs the amount equivalent to the Plaintiffs’ equity shares out of the value-added tax in arrears (hereinafter “instant disposition”).

D. The Plaintiffs appealed and filed an appeal with the Tax Tribunal on June 7, 2016, but on June 7, 2016.

8.24. was dismissed.

[Reasons for Recognition] Unsatisfy, Gap evidence 2, 4, 5, 7, Eul evidence 1-1, 2, and the purport of the whole pleadings

2. The plaintiffs' assertion

이 사건 회사를 실질적으로 설립하여 운영한 사람은 원고들이 아니라 윤△△인데, 원고 윤**는 윤△△에게 사업자금 명목으로 대여한 금원을 변제받기 위하여 윤△△의 요구에 따라 윤△△에게 이 사건 회사 설립에 필요한 서류를 제공하고 이 사건 회사의 대표이사로 취임하였으며, 이 사건 회사의 주식을 취득하였다. 원고 윤@@는 원고 윤**의 윤△△에 대한 대여금의 담보 목적으로 윤△△이유상증자를 통하여 취득한 이 사건 회사 주식 2,000주를 양수하였다. 원고들은 이 사건 회사의 설립 과정(자본금 납입 등)이나 회사 경영에 실질적으로 관여한 사실이 전혀 없고, 대여금에 대한 담보 목적 등으로 주식을 소유하고 있었던 것에 불과하므로, 국세기본법 제39조 소정의2차 납세의무자에 해당하지 않는다. 따라서 이 사건 처분은 위법하다.

3. Relevant statutes;

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

4. Determination on the legitimacy of the instant disposition

A. Article 39 of the former Framework Act on National Taxes (amended by Act No. 12848, Dec. 23, 2014; hereinafter the same) provides that “National taxes and additional dues imposed on or to be paid by the corporation as the property of the corporation

As of the date of establishment of national tax liability for disposition fee for arrears, any of the following persons shall be liable for secondary tax liability for the deficient amount of the national tax. In addition, Article 20 of the former Enforcement Decree of the Framework Act on National Taxes (amended by Presidential Decree No. 24697, Aug. 27, 2013; hereinafter the same applies) provides that "a shareholder and a person prescribed by Presidential Decree from among his/her specially related persons, who have a relationship falling under any of the subparagraphs of Article 18-2, shall be liable for secondary tax liability for the deficient amount of the national tax."

B.1) Determination of whether a person constitutes an oligopolistic shareholder under the above provision of the law shall be based on whether the person is a member of a group holding stocks of the majority. Specifically, even if there are no facts involved in the company management, it shall not be determined that the person is not an oligopolistic shareholder, and the fact of ownership of stocks shall be determined.

With respect to any record of stockholders, statements of stock transfer or certified transcript of register, etc. by tax authorities;

(1) If a shareholder appears to be a shareholder in light of the above data, the actual shareholder shall not be deemed to be a shareholder only in the name of the shareholder, if there are circumstances, such as the shareholder's illegal use of the name or the registration of the name other than the real shareholder's name, but this does not apply to the shareholder.

The nominal owner who asserts to exploit should prove (see, e.g., Supreme Court Decision 2003Du1615, Jul. 9, 2004).

2) In order to constitute “the exercise of rights to shares exceeding 50/100” as referred to in the said provision of the said Act, even if there was no actual exercise of shareholder rights, the said provision must be in a position at least to exercise shareholder rights to the shares held as at the date of establishment of tax liability (see, e.g., Supreme Court Decisions 2008Du983, Sept. 11, 2008; 201Du9287, Dec. 26, 2012).

3) Even if shares are transferred for the purpose of collateral security and the transferee is merely a mortgagee, a mortgagee may exercise his/her shareholder’s right to vote or other public interest (see, e.g., Supreme Court Decisions 92Da84, May 26, 1992; 93Da8719, Dec. 28, 1993).

다. 이 사건에 관하여 보건대, 이 사건 회사가 2012년 2기분부터 2013년 2기분까지의 부가가치세 합계 46,870,020원(가산세 포함)을 납부하지 않고, 2013. 12. 31. 폐업한사실, 2012. 1. 기준으로 원고 윤**가 이 사건 회사의 총 발행주식의 45%인 9,000주를, 원고 윤**의 부친인 원고 윤@@가 총 발행주식의 10%인 2,000주를 각 소유하고 있는 사실은 앞서 본 바와 같다.

Meanwhile, the plaintiffs asserted to the effect that △△△△△ was substantially operating the company of this case and the plaintiffs did not fall under the oligopolistic shareholders since it was merely a type of shareholder and did not exercise the authority as shareholder. However, each of the above evidence is acknowledged in addition to the overall purport of Gap evidence Nos. 8 and Eul evidence Nos. 2 through 8 (including the number of each branch number) and all of the arguments, i.e., the following circumstances, ① the plaintiffs *** signing the report of incorporation and the application for business registration at the time of the establishment of the company of this case. When concluding a lease contract on the business of the company of this case, it was likely to obstruct the tenant's name side of the tenant, ② the plaintiffs ** while serving as the representative director of the company of this case from February 2, 2012 to December 2, 2012, the plaintiffs were paid the total amount of 5,608,180 won from the company of this case, ③ the plaintiffs * the plaintiffs * * * 10,0100.1.1.14.1.1.1.1.2.4.

***S and the instant company are similar not only to the trade name, but also to the fact that the main type of business is the wholesale and retail of kitchen apparatus, etc., it is difficult to believe the Plaintiffs’ assertion that the Plaintiff ** was involved to a certain extent in the process of the establishment of the instant company, that it was merely lending the name of the representative director or acquiring the shares formally in order to recover the loan, and there is no evidence to acknowledge the Plaintiffs’ assertion on the evidence No. 3 alone, and there is no other evidence to acknowledge it otherwise.

Therefore, the instant disposition based on the premise that the Plaintiffs constituted an oligopolistic shareholder who owns 5% of the total issued stocks of the instant company as of the date of establishment of the liability for value-added tax payment from February 2012 to February 2013 is lawful, and the Plaintiffs’ assertion is groundless.

5. Conclusion

Therefore, the plaintiffs' claims are dismissed in entirety as it is without merit. It is so ordered as per Disposition.

shall be ruled.