Seoul High Court 2014Nu50387 ( December 11, 2014)

(In a formal manner, even if a person falls under an oligopolistic stockholder on the register of stockholders, if he/she does not actually exercise the management right, he/she does not fall under an oligopolistic stockholder

(2) The Plaintiff Company held 70% on the register of shareholders and 30% on the register of shareholders and registered respectively by the Plaintiff, etc. on the register of shareholders, but the Plaintiff, etc. was merely listed on the register of shareholders by lending the name of the shareholder, and thus, it does not constitute an oligopolistic shareholder.

2015Du35277 Revocation of Disposition of Corporate Tax Imposition

○○ and 1

000 director of the tax office

2014Nu50387

December 11, 2014

1. The defendant's appeal is dismissed.

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

1. Purport of claim

(i) The Defendant’s corporate tax of KRW 0,000,000, value-added tax of KRW 00,000,000 that the Plaintiff paid on September 14, 2012

Each disposition on November 6, 2012, each disposition on imposition of corporate tax of KRW 0,000,000, value-added tax of KRW 00,000,000, and earned income tax of KRW 0,000,000 shall be revoked.

2. Purport of appeal

The judgment of the first instance is revoked. All of the plaintiffs' claims are dismissed.

1. From the reasoning of the judgment of the court, the part cited in the judgment of the court of first instance is identical to that of the above part, except for the following: (a) whether the disposition of this case is legitimate, (b) whether the plaintiffs' assertion, (c) relevant statutes, and (c) the facts of recognition: (a) the part of the judgment of the court of first instance differs from that of the court of first instance pursuant to Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act; and (b) the part that differs from the judgment of the court of first instance.

D. Determination

(1) Whether it constitutes an oligopolistic shareholder shall be determined by whether it is a member of a group owned by a majority of stocks. Specifically, even if there is no fact involved in the management of the company, it cannot be determined that it is not an oligopolistic shareholder. The fact of ownership of stocks is sufficient for a tax authority to prove it by the data such as the register of shareholders, the statement of stock transfer

However, even if a shareholder appears to be a single shareholder in light of the above data, if there are circumstances such as by using the name of the shareholder or by registering under a name other than the name of the actual owner, the actual owner cannot be deemed to be a shareholder. However, this should be proved by the nominal owner who asserts that the shareholder is not a shareholder (see Supreme Court Decision 2003Du1615, Jul. 9, 2004). (2) As can be known through the above facts, 1) as a company established or taken over by ○○○○ in accordance with its business needs, its address and business attitudes are the same, and ○○○ was operated as a single business place, and ○○○ was operated as a representative, using the name of the representative, and 2) the Plaintiffs were registered as the representative director of ○○○○○○○ in the name of the Plaintiff’s shareholder registry, and there was no change in working conditions, such as the content or salary, etc. of the Plaintiff’s own business after being registered as the representative director of ○○○○○ and its own shareholder registry.

3. Conclusion

Thus, the defendant's appeal is dismissed as it is without merit.