Early High Court Decision 2008J 4053 (209.06.02)

A person who exercises a substantial right over stocks or investment shares;

A person who actually exercises rights in shares or equity shares does not necessarily require that the person who actually exercises the shareholder's rights should be in the position to exercise the shareholder's rights with respect to the shares held as of the date of establishment of the tax liability at least.

The contents of the decision shall be the same as attached.

1. The plaintiff's action shall be dismissed.

2. On September 17, 2008, the Defendant revoked the disposition of imposition of value-added tax of KRW 97,810,440, wage and salary income tax of KRW 1,028,130, retirement income tax of KRW 2,814,560, imposed on Plaintiff-B on Plaintiff-B.

3. Of the litigation costs, the part arising between the Plaintiff OA and the Defendant shall be borne by the Plaintiff, while the part arising between the Plaintiff A and the Defendant shall be borne by the Defendant.

The disposition of imposition of value-added tax of KRW 20,959,270, wage and salary income tax of KRW 220,310, and retirement income tax of KRW 603,110, imposed on Plaintiff OA on September 17, 2008 shall be revoked.

1. Circumstances of the disposition;

A. The Plaintiff-B is the representative director of Doldong Co., Ltd. (hereinafter “instant company”) and the 2.10,000 shares of the instant company. The Plaintiff-A is an auditor of the instant company and a shareholder holding 45,000 shares of the instant company.

B. On August 24, 2006, the 00CC acquired all the management rights and shares of the company of this case from the Plaintiff AuthorizedB, and since taken office as the representative director of the company of this case on December 21, 2006, the company of this case was actually managing the company of this case and won the lawsuit seeking cancellation, etc. of the above stock and management rights transfer contract (hereinafter referred to as the "transfer contract of this case") on the ground that the plaintiffs belonged to the financial situation of the company of this case through window dressing accounting, etc., and the above judgment became final and conclusive on December 14, 2007.

C. On March 17, 2008, the head of the ○○ Tax Office designated and notified the whiteCC as the secondary taxpayer with respect to the value-added tax, earned income tax, and retirement income tax incurred at the instant company’s △△ factory in 2007. The head of the ○○ Tax Office revoked the disposition of imposition on the whiteCC against which the objection raised by the 0CC was accepted and revoked the designation of the secondary taxpayer.

D. On September 17, 2008, the Defendant: (a) designated the Plaintiffs as the secondary taxpayer; and (b) issued a disposition imposing the purport of the claim (hereinafter “instant disposition”); and (c) rendered the disposition imposing the claim.

[Ground of recognition] Unsatisfy, Gap evidence 1 to 10, Eul evidence 2 (including provisional number), the purport of the whole pleadings

2. Judgment on the Defendant’s defense prior to the merits

The plaintiff OA asserts that it does not correspond to the secondary taxpayer and sought the revocation of the secondary disposition of this case. However, Article 55 (1) of the Framework Act on National Taxes provides that a person whose rights or interests have been infringed upon by either this Act or any other tax-related Act, which is illegal or unreasonable disposition or by failing to receive necessary disposition, may file a request for examination or a request for adjudication to cancel or modify such disposition, or for other necessary disposition pursuant to the provisions of this Chapter. Article 56 (2) of the same Act provides that an administrative litigation against an unlawful disposition as provided in Article 55 of the same Act may not be filed without the request for examination or a request for adjudication and a decision thereon pursuant to this Act, notwithstanding the provisions of Article 18 (1) (main sentence), (2) and (3) of the Administrative Litigation Act. Thus, there is no evidence to find that the plaintiff OA has gone through the above procedure. The lawsuit of plaintiff OA is unlawful,

3. Whether the instant disposition against the Plaintiff-B is legitimate

A. Plaintiff rightsB’s assertion

Even if the transfer and acquisition contract of this case was revoked by judgment, the Plaintiff-B was not in the shareholder status at the time of 2007, the taxable period, and was not in the actual exercise of the rights to shares. Therefore, the Plaintiff-B was not in the secondary taxpayer status.

(b) Related statutes;

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

C. Determination

Article 39(1) of the Framework Act on National Taxes provides that, where the property of a corporation is insufficient to cover the national taxes, additional dues, and disposition fees for arrears imposed on or to be paid by the corporation, a person who actually exercises the rights to the stocks or investment shares exceeding 50/100 of the total number of stocks generated or total amount invested by the relevant corporation among oligopolistic stockholders as of the date on which the liability to pay national taxes is established shall be subject to secondary tax liability for such shortage. In this context, "a person who actually exercises the rights to the stocks or investment shares" does not require that he/she should have the actual exercise of shareholders' rights, but at least he/she shall have the status to exercise shareholders' rights for the stocks held as

However, in the case of this case, the Plaintiff’s rightB did not participate in the management of the company of this case after the conclusion of the transfer contract of this case, and did not exercise shareholder rights until the transfer and acquisition contract of this case is revoked, and instead, 0CC has actually been operating the company of this case. ② The secondary tax liability of this case is a system that imposes supplementary tax liability on a third party who has a special relationship with the original taxpayer within the scope of the original taxpayer, and it is formally attributable to the third party, even if it is formally attributable to the third party, it is a system that denies formal rights by denying formal rights, such as where it is deemed that the property actually belongs to the original taxpayer, and thus is not fair even if it does not lose equity (see Supreme Court Decision 82Nu192, Dec. 14, 1982).

Therefore, the disposition of this case, based on the premise that the plaintiff entitledB is the second taxpayer, is illegal, and the plaintiff's assertion pointing this out is with merit.

4. Conclusion

Thus, the plaintiff OA's lawsuit is dismissed as illegal and reasonable, and the plaintiff's claim is reasonable, and it is so decided as per Disposition.