Whether it is a substantial management as an oligopolistic stockholder

The plaintiff et al. is in a position that is likely to actually control the management of the non-party company through the exercise of voting rights based on 100% of the shares of the non-party company held by them.

Article 38 (Secondary Tax Liability of Liquidator, etc.)

1. The part against the defendant in the judgment of the first instance shall be revoked;

2. The plaintiff (appointed party)'s claim corresponding to the above revoked part is dismissed.

3. The plaintiff (appointed party)'s appeal is dismissed.

4. The total cost of a lawsuit shall be borne by the plaintiff (appointed party).

1. Purport of claim

On July 30, 2002, the Defendant: (a) designated the Plaintiff (Appointed Party; hereinafter the Plaintiff; hereinafter the same shall apply) as the secondary taxpayer of the ○○ Master Company; (b) imposed the value-added tax of KRW 103,95,490 for the second period of 1997; and (c) imposed the value-added tax of KRW 40,432,540 for the first period of 1998; and (d) imposed the additional and increased additional and value-added tax for the second period of 1997 for Plaintiff Cho○-○, Appoint○, Ga○○, and Gag○ for the second period of 1997 for each of the above additional and increased additional taxes for value-added tax for the second period of 197, KRW 50,125,610 for the first period of 19,48,460 for the first period of 198.

2. Purport of appeal

Of the judgment of the court of first instance, the part against the plaintiff Cho ○ shall be revoked. The defendant, on July 30, 2007, designated the plaintiff Cho ○ as the secondary taxpayer of the ○○○ Master Commercial Co., Ltd. for the second period of 1997 and imposed the value-added tax of 103,95,490 won, value-added tax of 2nd period of 1997, value-added tax of 40,432,540 won for the first period of 1998, and the additional and increased additional taxes on value-added tax for the second period of 197 for the second period of 197 against the plaintiff Cho ○○ on August 12, 2002, shall revoke the defendant's demand for payment of additional taxes and increased additional taxes for value-added tax of 50,125,610 won for the second period of 19,48,460 won.

: It is so ordered as per Disposition 1 and 2.

1. Basic facts

The following facts are without dispute between the parties, or evidence Nos. 1, 16, 24-1, 25-1, 25-2, 25-1, 26-3, Gap evidence Nos. 27-1, 2, 4-2, 8-2, 9-1, 11-2, 12-1, 12-2, 15-1, 16-1, 2-1, 16-1, 16-1, 10-1, 10-1, and 10 of the evidence Nos. 17-1, 2-2, and 10 of the evidence No. 12-1, 16-1, and 10 of the evidence No.

A. The Claimant ○○○ is the wife of Plaintiff ○○○○, and the Claimant ○○ is the wife of Plaintiff ○○○○, and the Plaintiff, etc. is registered as a shareholder in the register of shareholders of Plaintiff ○○○○○○○○○○○, and Gag○○○ (hereinafter collectively referred to as “the Plaintiff, etc.”). The purpose of Nonparty ○○ is to sell agriculture, livestock, fishery food, processed food, and other industrial products as wholesale and retail and sell them, and manufacture and sell leisure sports products, building products, etc.

B. On June 30, 1999, the Defendant imposed and collected value-added tax of KRW 103,995,490 for the second term portion of value-added tax in 1997 and value-added tax of KRW 40,432,540 for the first term portion of 1998, but the non-party company did not pay it.

C. On October 27, 1999, the defendant, on the ground that the plaintiff et al. constituted oligopolistic shareholders (100%) of the non-party company as of the date on which the liability for payment of each value-added tax was established, the defendant designated as the secondary taxpayer under Article 39 (1) 2 of the former Framework Act on National Taxes (amended by Act No. 5579 of Dec. 28, 1998; hereinafter the same shall apply) and notified the non-party company to pay each of the above value-added tax in arrears and the additional charges and the increased additional charges for three months (hereinafter referred to as the "first disposition of this case") to pay each of the above value-added tax for the second period of 112,939,08, the first period of 1998, the first period of 43,909,730 won for the first period of 198

D. On July 30, 2002, the plaintiff et al. filed the lawsuit of this case through objection and appeal and claimed that there was an error of omission in the tax base, tax rate, calculation basis, etc. The defendant revoked the first disposition of this case and notified the plaintiff et al. to the non-party company's secondary taxpayer of value-added tax for the second period of July 30, 2002 and the non-party company's payment of value-added tax 40,432,540 for the first period of 1998. On August 12, 2002, the plaintiff et al. notified the non-party company that the non-party company should pay additional tax and additional tax and additional tax for value-added tax for the second period of 2 years of 1997 as well as additional tax and increased additional tax for the second period of value-added tax for 50,195,490 for the second period of 197.

2. Determination on the lawfulness of the instant disposition

A. The parties' assertion

The defendant asserts that the disposition of this case is lawful in accordance with the above basic facts and relevant Acts and subordinate statutes, and accordingly, the plaintiff et al. asserts that the disposition of this case is unlawful on the following grounds.

(1) The non-party company was in a Dormant for a long time and was registered as a shareholder of the non-party company as the non-party company and the plaintiff et al. was merely a shareholder of the non-party company, since the non-party Kim ○ was not a shareholder of the non-party company and the non-party company was not a shareholder of the non-party company. The non-party company's oligopolistic shareholder is not a shareholder of the non-party company since the non-party company was transferred to the non-party Kim ○, around 1996, and around 196, that the non-party Kim ○ needs to be a Dormant company. The Kim ○ transferred the non-party company

(2) The instant disposition was made after the expiration of the exclusion period for national tax imposition.

(3) Although the plaintiff et al., the public official in charge of the defendant's public official in charge of the defendant's failure to file an objection against the first disposition of this case, the plaintiff et al. acknowledged the error of the first disposition of this case and thus revoked the first disposition of this case, it again goes against the principle of good faith to the defendant.

(b) Related statutes;

Attached Form is as shown in the attached Form.

C. Determination

(1) Determination as to the assertion that it is not an oligopolistic stockholder

(A) Article 39(1)2 and (2) of the Framework Act on National Taxes and Article 20 of the Enforcement Decree of the same Act provide that a member of a group of stockholders holding not less than 51/100 of the total amount of shares issued by a corporation is an oligopolistic shareholder and they are in a position of de facto control through the exercise of voting rights at a general meeting of shareholders to impose secondary tax liability on them. Thus, whether a member of a group of stockholders holding more than 51/100 of the total amount of shares issued by a corporation constitutes an oligopolistic shareholder under the above Article shall be determined based on whether it is a member of a group of stocks owned by the majority, and even if there is no specific fact in the management of the company, it shall not be determined that the ownership of shares at the time is not an oligopolistic shareholder. The tax authority must prove that the ownership of shares at the time is by means of data such as the list of shareholders, the list of changes in stocks, the list of corporate register, etc., and if there is a circumstance that a shareholder is no nominal (see, e.g., Supreme Court Decision 96Nu.

(나) 갑 제2호증, 갑 제3호증, 갑 제4호증, 갑 제5호증의 1,2, 갑 제8호증의 2,3, 갑 제13호증 2, 갑 제15호증의 1,2, 갑 제19호증의 1,2, 갑 제21호증, 갑 제34호증, 갑 제35호증의 1,2, 갑 제36호증의 1,2, 갑 제37호증, 을 제3호증의 2, 을 제4호증, 을 제5호증의 1,2, 을 제6호증의 1 내지 6, 을 제7호증, 을 제10호증, 을 제17호증의 1,2, 을 제18호증의 1,2,3,4,을 제19호증의 1,2의 각 기재, 제1심 증인 유○○의 일부 증언(갑 제8호증의 2, 갑 제13호증의 2, 갑 제15호증의 1,2, 갑 제21호증의 각 기재 및 증인 유○○의 증언 중 뒤에서 믿지 않는 부분 각 제외)에 변론의 전취지를 종합하면, 소외회사는 1991.3.1. 개업하여 1998.3.31. 폐업(피고에 의하여 직권말소됨)되었고, 1997 사업연도 소득금액은 612,699원의 결손이 발생한 것으로 신고되었며, 그 자본금은 1억원인 사실, 피고는 소외 회사에 한 재산조사를 하였으나 재산이 없음을 확인하고 1997.10.27.자로 소외 회사에 대한 1997년도 제2기분 부가가치세와 1998년도 제1기분 부가가치세 체납액에 대하여 결손결의하고 이 사건 제1차 처분에 이르게 된 사실, 소외 회사가 1996 사업연도(1997.3.31. 신고)와 1997 사업연도(1998.3.31. 신고) 법인세 신고시 제출한 주식변동상황명세서에 의하면, 소외 회사의 총발행주식 20,000주 중 원고 조○○이 7,000주(35%), 선정자 갈○○가 6,000주(30%), 선정자 갈○○이 7,000주(35%)를 보유하고 있는 것으로 되어 있는 사실, 원고 조○○은 1997.8.11. 소외 회사의 대표이사로 취임하고, 소외 유○○은 1997.7.15. 소외 회사의 대표이사로 취임하여 원고 조○○과 위 유○○이 현재까지 법인등기부상 소외 회사의 대표이사의 직위에 있는 사실, 원고 조○○과 위 유○○은 소외 회사를 각자 대표하였으며, 소외 회사의 대표이사 인감도 따로 마련되어 각자 보관하였던 사실, 선정자 갈○○은 1996.3.19. 이사직에 취임하였다가 1997.7.15. 해임되었고, 1996년도, 1997년도에 소외 회사로부터 근로소득을 받은 사실(을 제17호증의 1)이 있으며, 1997.3.1. ○○산업이라는 상호로 사업자등록을 마치고 소외 회사와 동일한 업종인 전기, 건축자재 도, 소매업을 영위 하면서 소외 회사와 거래를 하였던 사실(을 제19호증의 1,2), 선정자 갈○○는 1996.11.23. 대표이사와 이사직에 취임하였다가 1997.8.11. 대표이사의 직위에서는 사임하였으나 현재까지 법인등기부상 소외 회사의 이사의 직위에 있으며, 1996년도에 소외회사로부터 근로소득을 받은 사실(을 제17호증의 2), 소외 김○○는 1996.12.16자로 소외 회사에 대한 법인사업자등록을 대표자 김○○로 하여 마쳤고, 위 유○○은 1997.7.25.자로 소외 회사에 대한 법인사업자등록을 대표자 유○○으로 하여 마쳤으며, 원고 조○○은 1997.8.1.부터 1999.5.11.부터 변호사 황○○법률사무소에서 사무장으로 근무하였던 사실, 위 김○○는 1996.12.16.경 위와 같이 사업자등록을 마치고, 소외 회사의 사업장을 이용하여 전기자재, 일반건축 자재 등의 도소매업을 운영하였고, 위 유○○은 소외 회사의 대표이사로 취임한 후 소외 회사의 운영에 관여한 사실을 인정 할 수 있고, 이에 반하는 갑 제6호증, 갑 제14호증, 갑 제22호증, 갑 제23호증의 1,2, 갑 제30,31,32 각 호증의 각 1,2, 갑 제38호증의 2, 갑 제39호증, 을 제14호증의 1,2,3의 각 기재, 갑 제8호증의 2, 갑 제13호증의 2, 갑 제15호증의 1,2, 갑 제21호증의 각 일부 기재 및 제1심 증인 유○○의 일부 증언 믿지 아니하고 달리 반증이 없다.

According to the above facts, even if the ○○○○○○○○○○ Company’s ○○○○○○○○○○ Company’s ○○○○○○○○○ Company’s ○○○○○○○○○○○ Company’s ○○○○○○ Company’s ○○○○○○○ Company’s ○○○○○○○ Company’s ○○○○○○○○○ Company’s ○○○○○○○○ Company’s ○○○○○○○○ Company’s ○○○○○○ was a shareholder of the company, and was appointed as the ○○○○○ Company’s ○○○○○○ Company’s ○○○○○○ Company’s ○○○○○○ Company’s ○○○○ Company’s ○○○○ Company’s ○○○ Company’s whose ○○○○ Company’s ○○ Company’s ○○ Company’s ○.

(C) If so, the plaintiff et al. actually exercised the right to 51/100 or more of the shares generated by the non-party company. Thus, Article 39 (1) 2 of the former Framework Act on National Taxes (the appointed ○○ is the spouse of the plaintiff Cho ○○ and a person living together) and Article 39 (1) 2 of the former Framework Act on National Taxes (the appointed ○○ is the spouse of the plaintiff Cho ○○) and (d) bear the secondary tax liability for each value-added tax, etc. attached to the non-party

(2) Judgment on the assertion of exclusion period of national tax

According to Article 26-2(1)3 of the former Framework Act on National Taxes and Article 12-3(1) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 15968, Dec. 31, 1998), the exclusion period of imposition of national taxes is five years from the time limit or time limit for submission of a report on the tax base and amount of national taxes when the tax base and amount of national taxes are reported, and under Article 18 of the former Value-Added Tax Act (amended by Act No. 5585, Dec. 28, 1998), the time limit for filing a report on the tax base and amount of taxes for the second period of 1997 and the first period of value-added tax for 198 shall be January 25, 1998 and July 25, 1998. Thus, the exclusion period of imposition of each of the value-added tax in this case shall be until January 25, 2003 and July 2

(3) Judgment on the assertion of violation of the principle of good faith

According to the records of evidence No. 28 (Recording), Kim○, who is a public official belonging to the defendant, made a statement that the first disposition of this case was cancelled because it omitted the tax base, tax rate, basis for calculating the amount of tax, etc. in a telephone conversation with the plaintiff Cho Jong-○, which is a public official of the defendant, and it is acknowledged that it would be cancelled. However, it is merely the purport that the first disposition of this case is cancelled on the ground of such procedural defect as above, and it does not seem to be to have been cancelled since the first disposition of this case was imposed on the plaintiff et al. rather than

D. Sub-committee

Thus, the plaintiff et al. bears secondary tax liability for each of the above value-added taxes imposed on the non-party company. Thus, the defendant's disposition of this case is legitimate.

3. Conclusion

Therefore, the claim of this case by the plaintiff et al. seeking revocation on the premise that the disposition of this case is unlawful, shall be dismissed on the ground that it is without merit. Since the judgment of the court of first instance is unfair on the ground that it is unfair, the part against the defendant in the judgment of the court of first instance which accepted the defendant's appeal and revoked the part against the defendant in the judgment of the court of first instance, and all of the claims of the plaintiff et al. in the judgment of the court of first instance which falls under the revoked part