Seoul Administrative Court 2017Guhap60741 ( December 8, 2017)

Seocho 2017west36 (2017.03.08)

Even if a nominal shareholder is a nominal shareholder, it cannot be viewed as a shareholder in form because it is not subject to restrictions on the exercise of shareholder rights.

(1) The Plaintiff was involved in the establishment of a corporation by allowing the Plaintiff to use his name and paying shares under the Plaintiff’s name. The Plaintiff was registered as a representative director or a shareholder in the registry and the register of shareholders and was in the position to exercise shareholders’ rights. If the Plaintiff was paid benefits, it is difficult to deem that the Plaintiff was merely a shareholder in form.

Article 39 (Secondary Liability to Pay Taxes by Investor)

2018Nu3058 Revocation of Disposition of Imposition of Value-Added Tax, etc.

United Kingdom A

BB Director of the Tax Office

December 8, 2017

May 29, 2018

June 26, 2018

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance shall be revoked. The disposition of imposition of value-added tax of KRW 00,00,000 (including additional tax), value-added tax of KRW 00,000 for the second period of September 5, 2016, value-added tax of KRW 00,000 (including additional tax), value-added tax of KRW 00,000 for the second period of December 2015, and value-added tax of KRW 00,000 (including additional tax) for the second period of February 2015, shall be revoked.

1. Quotation of judgment of the first instance;

The reasons for this court's decision are as follows: "A provision of 4th 8th 8th son of the judgment of the court of first instance is stipulated", and the attached Acts and subordinate statutes are replaced by the attached Acts and subordinate statutes (the addition of subparagraph 2 to Article 155(19) of the former Enforcement Decree of the Income Tax Act) in addition to the replacement of the attached Acts and subordinate statutes in this judgment (the addition of subparagraph 2 to Article 155(19) of the former Enforcement Decree of the Income Tax Act). Therefore, this is cited in accordance with

The reasoning for the judgment in this case is as follows: (a) add 1 to the first part of the first part of the judgment of the court of first instance at the bottom of the second one; and (b) add 2. The reasoning for the judgment of the court of first instance as stated in the reasoning for the judgment of the court of first instance, except where the plaintiff added the judgment as set forth in the following 2.3. Thus, this shall be cited in accordance with Article 8(2) of the Administrative Litigation Act

2. Additional determination

A. The plaintiff's assertion

Whether it constitutes an oligopolistic shareholder under Article 39(1)2 of the Framework Act on National Taxes ought to be determined on the basis of whether it participated in the management of the company, whether it has received wages or dividends, and whether it has lent the name of the shareholder. Since ○○○○○○ has used the same office as ○○ Korea without a separate office, it is clear that it is a subsidiary of ○○ Korea, and the Plaintiff was a home owner with no business or work experience, and only lent the name of the shareholder to ○○ Korea. The Plaintiff did not have any participation in the management. The amount of money transferred from ○○○○ Accounting to the Plaintiff’s account by the Plaintiff

B. Determination

1) Whether it constitutes an oligopolistic shareholder under Article 39(1)2 of the Framework Act on National Taxes shall be determined by whether it is a member of a group of stocks owned by the majority. Specifically, even if there is no fact involved in the management of the company, it shall not be determined by such fact alone. The fact of ownership of stocks shall be proven by the tax authority through the data such as the register of stockholders, the statement of stock transfer status, the register of corporate register, etc. However, even if it appears to be a single shareholder in light of the data, if there are circumstances, such as that the actual shareholder was stolen or registered in the name other than the real shareholder, the actual shareholder shall not be deemed to be a shareholder, but this shall not be deemed to be a shareholder only in the name thereof, which is alleged to be a shareholder (see, e.g., Supreme Court Decision 2003Du1615, Jul. 9, 2004). The part of the Supreme Court Decision 2009Du7578, Feb. 25, 2010>

2) In light of the following circumstances, the evidence and the evidence set forth in the judgment of the first instance court, cited earlier, as well as the evidence set forth in the evidence set forth in the evidence set forth in the evidence set forth in the judgment set forth in the judgment set forth in the judgment set forth in subparagraph 7, it is insufficient to recognize that the Plaintiff is not a shareholder of ○○○○

① According to the overall purport of the visual and oral arguments by evidence No. 23, the fact that the location of the head office of ○○○○○○○○○○○○○○○○, a main complex building for the entire registered matters of ○○○○○○○○○○○○○○○○○, may be acknowledged. However, as long as it is confirmed that ○○○○○○ was a separate corporation established with ○○ Korea for the purpose of other businesses, and that ○○○○○○○ was included in annual salary, welfare expenses, rent, etc. under the income and loss statement of ○○○○○○○○○○○, the above recognition alone alone, does not readily mean that ○○○○○○○ is a separate

② Although the Plaintiff appears to have not been involved in the management of ○○○○○○ as a family principal office, insofar as the Plaintiff himself/herself was listed as the representative director by participating in the establishment of ○○○○○○○○, and was aware that shares were paid in the name of the Plaintiff and held shares, it cannot be deemed that the Plaintiff did not have the status of exercising its authority

③ As long as the Plaintiff received monthly benefits from ○○○○○○○○ during the period of the representative director’s office through withholding income tax, it is insufficient to recognize that the said amount is not benefits solely on the ground that the amount was less than or the Plaintiff did not withdraw the said amount without knowing such fact.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit, and the judgment of the court of first instance is just in conclusion, and the plaintiff's appeal is dismissed as it is without merit.