The legitimacy of the assertion that the second taxpayer’s notice of designation as an oligopolistic shareholder is a nominal shareholder

It is difficult to believe that the non-party company was not aware of the process of acquiring and disposing of shares of the non-party company or lent only the name without having invested in the non-party company in light of the fact that there was experience in participating in the establishment of several companies other than the non-party company.

Article 39 (Secondary Liability for Tax Payment of Investor)

All appeals are dismissed.

The costs of appeal are assessed against the plaintiffs.

All of the records of this case and the judgment of the court below and the grounds of appeal were examined. However, the grounds of appeal on the grounds of appeal are not included in the grounds stipulated in each subparagraph of Article 4(1) of the Act on Special Cases Concerning the Procedure for Appeal, and the appeal is dismissed pursuant to Article 5 of the same Act. It is so decided as per

[Seoul High Court Decision 2007Nu31272, May 28, 2008]

1. The plaintiff's appeal is dismissed.

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

The judgment of the court of first instance shall be revoked. On June 17, 2005, the disposition of imposition in the attached Table 1 against the plaintiff shall be revoked.

1. Details of the disposition;

The following facts are not disputed between the parties, or acknowledged in full view of the whole purport of the arguments in Gap evidence 1 to Gap evidence 4, and Eul evidence 1 to Eul evidence 6 (including each number):

A. On June 15, 200, 200, ○○○○○○○○ (hereinafter “○○○○○”) was established with the trade name “△△△△△△△△△”, and on February 27, 2001, the trade name was changed to the current trade name on July 2, 2001, respectively. The capital is KRW 80,000,000 (one share amount, KRW 500, total number of issued shares, KRW 160,000).

B. The plaintiff was registered as holding 90,000 shares of the non-party company (56.25%) from the time of incorporation of the non-party company to the end of 2003. The corporate register of the above company was registered as the representative director from the time of incorporation to June 2, 2001, and as the auditor from June 2, 2001 to August 20, 2001.

Table 1

Status of shareholders of the non-party company

Note Notes Notes

amount of money withdrawn;

Number of Stocks

Ratio of Shares

Jinay

45,000,000 won

90,000,000

56.25%

○ ○

17,500,000 won

35,000,000

21.88%

○ ○

17,500,000 won

35,000,000

21.88%

guidance.

80,000,000 won

160,000,000

100%

C. However, the non-party company closed its business on December 31, 2004 without paying the value-added tax from January 2001 to January 2003 and the corporate tax, etc. for 177,889,060, including corporate tax for 2002 business year. The defendant on June 27, 2005, on the ground that the plaintiff is the oligopolistic shareholder of the non-party company who is the second taxpayer, the non-party company imposed each value-added tax, etc. as stated in the attached Table 1 of the tax amount in arrears (hereinafter "the disposition of this case").

D. The plaintiff, who is dissatisfied with the disposition of this case, filed an appeal with the National Tax Tribunal on March 17, 2006. The National Tax Tribunal dismissed the plaintiff's appeal on January 9, 2007.

2. Whether the disposition of this case is lawful;

A. The plaintiff's assertion

The plaintiff accepted the appointment of the representative director of the non-party company at the recommendation of the non-party ○○ and the largest ○○ on June 2000, and did not pay the share price to the non-party company, and is merely a nominal shareholder who does not have any actual exercise of rights as a shareholder of the non-party company. Even if it is not so domestic affairs, since the plaintiff resigned on August 20, 201 after the plaintiff resigned from the auditor of the non-party company, the largest ○ was in association with the plaintiff or the non-party company and independently managed the non-party company, the plaintiff did not exercise a shareholder's right against the non-party company or participate in the management of the non-party company. Therefore, the plaintiff does not fall under the second taxpayer of the non-party company from the beginning or around August 2001,

(b) Related statutes;

Attached Table 2 shall be as stated in the relevant statutes.

(c) Fact of recognition;

The following facts are not disputed between the parties, or may be acknowledged in full view of Gap evidence 1 through Gap evidence 6, Gap evidence 8, Eul evidence 1 through Eul evidence 9 (including each number), and the purport of the whole pleadings with respect to the witness Lee ○○'s testimony of the first instance court.

(1) As indicated in Table 2, the Plaintiff, the largest○○, and the Lee○○○ were working as an executive of the Nonparty Company and the Republic of Korea Rural Affairs Co., Ltd. (hereinafter referred to as “the Republic of Korea”).

Table 2

Status of executives of the plaintiff et al.

Nonparty Company

Republic of Korea

Representative Director (Law No. 6. 15-2, 2001)

Auditors ( August 2, 2001 2-- August 20, 201)

Joint representative director ( May 10-2001 May 17, 2001)

Single representative director ( July 11, 2001- March 31, 2003)

○ ○

Directors (Law No. 6. 15-20 August 2001)

Directors ( September 17, 2001 - - Director)

○ ○

Directors ( February 27, 2001)

Auditors ( February 27, 2001)

Representative Director ( June 2, 2001 - -)

Representative Director (No. 31, 2003 - -)

(2) On June 2001, the non-party company’s wage ledger (Evidence A No. 8-1) states that the plaintiff was paid KRW 2.5 million monthly wage as the auditor of the above company, and the current status of wage and salary income data (Evidence B (Evidence B) of the plaintiff in 2002 against the plaintiff, the plaintiff was paid KRW 22,050,000 from the non-party company in 202, and KRW 72,450,000 from the Sockdong group in the year 2002.

(3) 원고는 1991. 1. 1. 주식회사 ●●●, 1991. 8. 24. ○○종합유통, 1992. 2. 18. 주식회사 ▷▷▷▷▷▷, 1995. 5. 3. ◎◎◎◎◎•▥▥▥▥▥▥▥▥▥▥▥▥▥, 1999. 12. 9. ■■■■■■•▣▣▣▣ 주식회사 등을 설립하기도 하였다.

(4) At the end of 2003, the Plaintiff owned 56.25% of the non-party company, 31.32% of the executive branch of the executive branch of the Rural Development Association, e.g., uU000f077 uu uu 00077 uu u 000077 u 0.79% of the uu uu uu uu u u2.58% of the stock company, but the Plaintiff did not submit the list of shareholders

(5) On August 20, 2001, the minutes of the temporary general meeting of shareholders (Evidence A5) of the non-party company attended the temporary general meeting of shareholders from among five shareholders of the non-party company, three of the non-party company including the plaintiff, the largest shareholder, and the Kim ○○. They stated that they hold 115,000 shares out of the total number of shares issued by the non-party company, and the representative director Lee ○, directors Cho ○, and Hu○○ signed and sealed each of the above minutes.

(6) On October 31, 2001, three of the shareholders of the non-party company, including Lee○, Cho○, and Choi○○, among four shareholders of the non-party company, attended the provisional shareholders' meeting of the non-party company. They stated that they own 112,00 shares out of the total number of shares issued by the non-party company 160,000 shares, and the representative director Lee○ and director Cho○, respectively, signed and sealed the above minutes.

(7) From July 11, 2001 to March 31, 2003, the Plaintiff worked as the representative director of the Republic of Korea, and the ○○○○ as the representative director of the non-party company for the same period. The non-party company issued the processed tax invoices of Chapter 8, Chapter 617,393,000 in the second taxable period, and Chapter 380,983,000 in the first taxable period in 2002, respectively, during the second taxable period in 2002, and traded the processed tax invoices of Chapter 3,292,561,000 in the first taxable period in 202, and 6, Chapter 159,000,000 in the second taxable period in 202 without a real transaction.

D. Determination

In determining whether a person falls under an oligopolistic shareholder under Article 39(1)2 of the Framework Act on National Taxes, the tax authority should prove the ownership of shares based on the data such as a shareholder registry, a statement of stock transfer or corporate registry registry, etc.: Provided, That even in cases where a person appears to fall under a single shareholder in light of the above data, where the actual shareholder was stolen or registered in a name other than a real shareholder’s name, the actual shareholder cannot be deemed to fall under a shareholder, but the nominal shareholder who asserts that he is not a shareholder should prove that he is not a shareholder (see, e.g., Supreme Court Decisions 2004Du000, Oct. 0, 2004; 200; 95Nu000, Oct. 0, 1996)

In light of the following circumstances, i.e., (e., (e) Nonparty 1’s holding of shares within a certain period of time when shares change during the pertinent business year; (ii) Nonparty 2 did not submit a detailed statement on the change of shares; and (iii) Nonparty 1’s holding of shares within a certain period of time from June 15, 200 to 203; and (iv) Nonparty 2’s holding of shares at least 56.25% of the shares of the company (amount of 45 million won) by the end of 2003; and (v) Nonparty 1’s holding of shares at the 0th anniversary of the total number of shares issued by Nonparty 6’s holding of shares at the 00th shareholder meeting; and (v) Nonparty 1’s holding of shares at the 0th shareholder meeting without any change in the number of shares issued by Nonparty 2; and (v) Nonparty 2’s holding of shares at the 0th shareholder meeting at the 0th shareholder meeting. It appears to have been established by the Plaintiff alone.

Therefore, the Defendant’s disposition of this case based on the premise that the Plaintiff falls under the secondary taxpayer as an oligopolistic shareholder of the non-party company is legitimate.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.

public official law, order of law,

Framework Act on National Taxes (amended by Act No. 7008 of Dec. 30, 2003)

§ 39. Secondary tax liability of an investor

(1) Where the property of a corporation (excluding a corporation whose stocks are listed on the Korea Stock Exchange) is insufficient to cover the national taxes, additional dues, and disposition fee for arrears that the corporation has imposed on or is to pay, the person falling under any of the following subparagraphs as of the date on which the liability to pay national taxes is established shall be subject to secondary tax liability for such shortage: Provided, That in the case of an oligopolistic stockholder under subparagraph 2, the limit of the amount calculated by multiplying the amount calculated by dividing the shortage by the total number of stocks issued (excluding non-voting stocks; hereafter the same shall apply in this Article) or total amount of investment of the corporation by the number of stocks owned by the oligopolistic stockholder (excluding non-voting stocks) or investment amount (in

1. General partners;

2. An oligopolistic stockholder who falls under any of the following items:

(a) A person who exercises a substantial right over the stocks or investment shares in excess of 51/100 of the total issued stocks or total investments of the relevant corporation;

(b) An honorary chairperson, chairperson, president, vice president, senior managing director, managing director, director, or any other person who actually controls the management of the corporation, notwithstanding the title thereof;

(c) The spouse (including the person in de facto marital relations) of the persons under items (a) and (b) and the lineal ascendants and descendants sharing their living

(2) For the purpose of paragraph (1) 2, the term “excess stockholder” means a person who is a relative or has other special relations with a stockholder or partner with limited liability as prescribed by the Presidential Decree, and the total sum of stocks owned or investment is 51/100 or more of the total number of stocks issued or investment of the juristic person concerned