National Tax Service Review and other 2010-0027 (2010.05)

because the shares are actually owned by the second taxpayer;

The issue of whether an oligopolistic stockholder falls under an oligopolistic stockholder shall be determined by whether the group owned by the majority stocks is a member of the group owned by the majority, and even if there is no specific fact in the management of the company, it cannot be determined that it is not an oligopolistic stockholder, and it is reasonable to deem that the Plaintiffs actually owned the stocks under the specification

2010Guhap37780 Revocation of Disposition of Imposing corporate tax, etc.

Ansan et al.

O Head of tax office

December 23, 2010

January 13, 2011

1. All of the plaintiffs' claims are dismissed.

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

The Defendant imposed corporate tax of KRW 29,592,830 and value-added tax of KRW 11,118,150 and KRW 16,440 of corporate tax of KRW 16,450 and value-added tax of KRW 6,176,730 of the year 2004 with respect to Plaintiff AB on February 23, 2010, respectively, and revoked the imposition of KRW 16,440,450 of corporate tax of KRW 2004 with respect to Plaintiff AB.

1. Details of the disposition;

A. The company that engaged in manufacturing and distributing cosmetics, etc. (hereinafter referred to as the “company of this case”) was in arrears with the corporate tax of 103,562,360 won for the year 2004 and the value-added tax of 38,908,840 won for the second period of 2004.

B. As of December 31, 2004, the Plaintiff Ansan owned 22.5% of the shares of the instant company and the Plaintiff ParkB owned 12.5% of the shares.

C. Accordingly, at the time of December 31, 2004, the Defendant, as the representative director of the instant company, was holding 30.96% of the company’s shares (the Plaintiff, AAA, and the Plaintiff, AmB, the husband of AmB, and the husband of AmB) and the Plaintiffs, who are related parties, are designated as the secondary taxpayer of the instant company pursuant to Article 39(1) of the former Framework Act on National Taxes (amended by Act No. 7930, Apr. 28, 2006; hereinafter “Framework Act”) and imposed corporate tax and value-added tax on the Plaintiffs according to the Plaintiffs’ share ratio as stated in the Plaintiffs’ claim(hereinafter “instant disposition”).

D. Meanwhile, from July 6, 2004 to the date, ACC is the representative director of the instant company; from July 12, 2004 to January 25, 2005, Plaintiff AA is the auditor of the instant company; from July 6, 2004 to January 25, 2005, Plaintiff AB is respectively listed as the director of the instant company; and from July 6, 2004 to the date, Plaintiff AB is listed as the director of the instant company; and the status of holding the shares of the Plaintiffs and ACC, etc. indicated in the specifications, etc. of changes

(The following table omitted):

[Ground of recognition] Facts without dispute, entry of Gap evidence 1 to 7 (including each number), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiffs' assertion

Since the plaintiffs did not actually own the shares of the company of this case and were not aware of the fact that they were shareholders, auditors or directors of the company of this case, it is unlawful to consider the plaintiffs as the oligopolistic shareholders of the company of this case and to designate them as the secondary taxpayer.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

The issue of whether a shareholder is an oligopolistic shareholder under Article 39(1)2 of the Framework Act on National Taxes shall be determined based on whether a majority of shares is a member of a group of shareholders. Specifically, even if there is no private opinion involved in the management of the company, it cannot be determined that the ownership of shares is not an oligopolistic shareholder. The fact of ownership of shares shall be proved by the tax authority through the data, such as the register of shareholders, the statement of stock transfer status, or the register of corporate register, etc., and in cases where there are circumstances such as where a shareholder appears to be a single shareholder in light of the above data, even if a shareholder appears to be a single shareholder, the real name alone cannot be deemed to be a shareholder, but it must be proved by the nominal shareholder who asserts that he is not a shareholder (see Supreme Court Decision 2003Du1615, Jul. 9, 2004).

In light of these legal principles, as of December 31, 2004, 65.96% of the shares of the company of this case among the plaintiffs in a special relationship with AnCC, the representative director and shareholders of the company of this case, as of December 31, 2004, among the shares of the company of this case, 65.96% (10% of the shares of the company of this case, when combined with the shares owned by AnnCC) of the company of this case. Since the plaintiffs were listed as the directors or auditors of the company of this case for a certain period as seen earlier, it is reasonable to deem that the plaintiffs actually owned the shares of the company of this case, and the testimony of Gap evidence 8 and 9 (including each number) and witness GangwonF alone are insufficient to recognize that the plaintiffs were either stolen the shareholders' name or registered under a name other than the real ownership name. There is no sufficient evidence to support the plaintiffs' assertion otherwise.

Therefore, the plaintiffs' 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.