early 2009west0257 ( October 31, 2009)

exercise of rights on shares exceeding 50% in the secondary tax liability of oligopolistic shareholders;

The exercise of rights to shares in excess of 50% in the secondary tax liability of oligopolistic shareholders does not necessarily require the exercise of shareholders' rights in reality, but rather, it should be deemed sufficient if it is possible to exercise shareholders' rights to the shares held as of the date when the national tax liability is established.

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

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposition of value-added tax of KRW 19,812,710 for the year 2007 against the Plaintiff on December 22, 2008 is revoked.

1. Details of the disposition;

A. On March 5, 2008, the Defendant imposed value-added tax of KRW 28,287,00 on the non-party company for the second period of March 5, 2007 on the grounds that BB alcoholic beverages Co., Ltd. (hereinafter referred to as “non-party company”) did not file a voluntary declaration of the value-added tax for the second period of 207.

B. As the non-party company did not pay the above value-added tax within the payment deadline, the defendant, on December 22, 2008, owned 67% of the total shares issued by the non-party company as of December 31, 2007, which was the time when the non-party company established the value-added tax liability, as of December 31, 2007, designated the plaintiff as the second taxpayer of the non-party company, and notified the plaintiff to pay KRW 19,812,710 (hereinafter referred to as the "disposition of this case").

[Reasons for Recognition] Uncontentious Facts, Gap evidence 6, Eul evidence 1 and 2, and the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

On August 23, 2005, when the Plaintiff was in office as a major shareholder and representative director of the non-party company, and entered into a contract to transfer 23,100 shares of the non-party company (including 3,000 shares owned by the non-party company) and management right of the non-party company to the 800 million won, and the Plaintiff did not work in the non-party company after September 2006 when the Plaintiff received approximately 80% of the share transfer price from the 1stA company, and did not work in the non-party company. Since the Plaintiff resigned from the office of the representative director on December 14, 2006, it was unlawful for the Defendant to designate the plaintiff as the second taxpayer of the non-party company and take part in the management. Accordingly, it was unlawful for the Defendant to take the instant disposition by designating the non-party company as the non-party company as the non-party

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

Article 39(1)2 of the Framework Act on National Taxes provides that a member of a group of stockholders who actually exercises rights to shares exceeding 50% of the total number of issued and outstanding shares of a corporation is an oligopolistic shareholder and imposes secondary tax liability on such shareholder group for the national tax in arrears of a corporation. Since the exercise of rights to shares exceeding 50% under the above provision is deemed to be in a position of de facto controlling the company's management through the exercise of voting rights at a general meeting of stockholders according to the number of the relevant shares held, the exercise of rights to shares in excess of 50% does not necessarily require the actual exercise of shareholder rights, but is not sufficient if it is possible to exercise shareholder rights to the shares held as of the date when the national tax liability is established (see, e.g., Supreme Court Decision 2008Du983, Sept

Therefore, in determining whether a person is an oligopolistic shareholder under Article 39 (1) 2 of the Framework Act on National Taxes, even if there is no specific fact to be involved in the management of the company, it cannot be determined that the person is not an oligopolistic shareholder. The fact of ownership of shares is sufficient to prove it by the data such as the register of shareholders, the statement of stock transfer, or the register of corporate register, etc. However, even if the tax authority appears to be a single shareholder in light of the above data, if there are circumstances, such as where the list of shareholders was stolen or the registration was made in the name other than the name of the actual owner, it cannot be deemed as a shareholder only in the name of the nominal shareholder, but this should be proved by the nominal shareholder who is claiming to be a shareholder (see, e.g., Supreme Court Decision

As to this case, according to the evidence Nos. 2 and 2, the plaintiff is found to have been registered as holding 20,100 shares equivalent to 30,000 shares issued on the statement of the situation of the non-party company's change of the stocks, etc. as of December 31, 2007, which is the time when the liability to pay the value-added tax was established for the second period portion of the non-party company's shares in December 31, 2007. According to the above facts of recognition, it is reasonable to deem that the plaintiff, as an oligopolistic shareholder holding shares exceeding 50% of the total shares issued by the non-party company's company, actually exercised the right to the shares or equity shares. Unlike this, the plaintiff's assertion that the plaintiff exceeded the status of the oligopolistic shareholder by transferring the whole shares of the non-party company's company owned by the non-party company to 1, etc. and did not actually exercise the right to the shares. Thus, the plaintiff's assertion that it did not have any reason to acknowledge the right to transfer of shares.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.