Whether the designation of the secondary taxpayer by the delinquent corporation is legitimate

Although the plaintiffs asserted that they are merely shareholders of the non-party company in the form of the non-party company, there is no evidence to acknowledge this, the plaintiffs are oligopolistic shareholders as of the date when the liability to pay delinquent national taxes is established and are in a position to exercise actual rights

Article 39 (Secondary Liability to Pay Taxes by Investor)

Article 20 of the Enforcement Decree of the Framework Act on National Taxes and scope of relatives.

1. All of the plaintiffs' claims are dismissed.

2. The costs of lawsuit are assessed against the plaintiffs.

On June 2, 2004 and April 21, 2004, the Defendant designated the Plaintiffs as the secondary taxpayer with respect to each corporate tax, value-added tax, and income tax (collection) listed in the separate taxation list against Nonparty ○○ Industries Co., Ltd. as the secondary taxpayer, and revoked both the imposition of KRW 30,075,350 in total against Plaintiff ○○○○ and the imposition of KRW 33,956,100 in total against Plaintiff ○○○.

1. Details of the disposition;

The following facts are not disputed between the parties, or they can be acknowledged in full view of the whole purport of the pleadings as stated in Gap evidence 1-1, 2, 12, and 1-2.

A. Nonparty ○○ Industries Co., Ltd. (the trade name before the change was ○○ Industries Co., Ltd.; hereinafter “○○ Industries Co., Ltd.”) was established on or around December 200 and closed down on March 23, 2004, and the automobile maintenance business was discontinued on or after March 23, 2004. However, as stated in the “tax amount in arrears” column in the separate tax list, the Plaintiff failed to pay KRW 97,017,690 in total of value-added tax, corporate tax, and income tax (Withholding) (hereinafter “tax amount in arrears”).

B. On June 2, 2004 and April 21, 2005, the Defendant: (a) on the ground that the Plaintiffs, the married couple, owned 66% of the shares of the non-party company (Plaintiff ○○○ 31% + Plaintiff ○○ 35%) as of the date on which each of the instant tax liability was established, and constitutes the oligopolistic shareholders who actually exercise their rights, the Defendant was the secondary taxpayer under Article 39(1)2 of the Framework Act on National Taxes; and (b) on the ground that the Plaintiffs were the secondary taxpayers under Article 39(1)2 of the Framework Act on National Taxes, and (c) paid and notified the Plaintiffs of each of the pertinent amount of taxation in the separate taxation

C. On June 2, 2004, the plaintiffs appealed against the above disposition of imposition of national tax on October 2, 2004. However, upon the dismissal of each of the above appeal on April 12, 2005, the plaintiffs filed the lawsuit in this case on May 12, 2005. The above disposition of imposition on April 21, 2005 was filed together with a national tax adjudication on May 21, 2005, but upon the dismissal of the above appeal on April 21, 2005, the plaintiffs expanded the claims of this case.

2. Whether the instant disposition is lawful

A. The plaintiffs' assertion or relevant laws

(1) The plaintiffs' assertion

○○○, the father of ○○○ and the head of ○○○○○, the Plaintiff’s principal, had the Nonparty Company established and had the Nonparty Company defaulted, and at his discretion registered the Plaintiffs as the shareholders in the form of Nonparty Company by using the Plaintiffs’ seal imprint, seal imprint, and resident registration transcript. As such, the Plaintiffs did not exercise their rights or engage in business management. Nevertheless, the Defendant’s deeming the Plaintiffs as the secondary taxpayers of Nonparty Company and the Defendant’s imposition disposition of this case against the Plaintiffs should be revoked as it is unlawful.

(2) Relevant statutes

Attachment 'Related Acts and subordinate statutes' shall be as shown.

(b) Fact of recognition;

The following facts may be acknowledged in light of the aforementioned evidence and evidence Nos. 2-1, 2, 4, 6, 7, 2-1 through 4, and 2-4.

(1) The corporate register of the non-party company is registered in the register of the non-party company that the plaintiff ○○○, who served as the auditor of the non-party company, resigned from office on May 25, 2001 and held office as a joint representative director or a sole representative director from the same day. The plaintiff ○○○, who served as a director of the non-party company, resigned from office on May 25, 2001 and held office as the auditor until March 3, 2003 from the same day.

(2) Plaintiff ○○○ received monthly remuneration of KRW 2,00,000 from Nonparty Company from June 2001 to March 2004 (the Plaintiff stated that Plaintiff ○○○ was not paid allowances, unlike other employees, according to Plaintiff 6’s statement of salary payment, and Plaintiff ○○○ does not have the Plaintiff ○○○’s signature in the receipt confirmation column. As Plaintiff ○○○ does not have the signature in the above statement of payment, the part indicated that the remuneration was paid to Plaintiff ○○○ was merely written in form. However, even based on the above statement of payment, the Plaintiff ○○○○’s signature was written, or the receipt confirmation column in some statement of payment was not in existence, and thus, the Plaintiff’s above assertion cannot be accepted).

(3) From 2001 to 2003, the non-party company continued to report to the Defendant that the Plaintiff ○○○ was holding 31% of the shares of the non-party company, and that the Plaintiff ○○○○ was holding 35% of the shares of the non-party company. There was no separate report on the shareholder change in the year 2004.

C. Determination

The issue of whether a person is an oligopolistic shareholder under Article 39(1)2 of the Framework Act on National Taxes shall be determined based on whether the person is a member of a majority share ownership group. Specifically, even if there is no fact involved in the management of the company, it cannot be determined that the person is not an oligopolistic shareholder. The fact of stock ownership should be proved by the tax authority’s data, such as the register of shareholders, the statement of stock transfer status, or the register of corporate register, etc., and the fact of stock ownership should be proved by the tax authority. However, even if the person appears to be a single shareholder in light of the above data, if there are circumstances, such that the person is stolen the name of the shareholder or is registered in the name other than the name of the de facto share ownership, it cannot be deemed as a shareholder only under such name. However, the nominal shareholder who asserts that he is not a

However, it is difficult to believe that the plaintiffs' testimony of Gap evidence 3-1 through 5, Gap evidence 8-1, 2, and Gap evidence 9, and witness Eul's testimony of ○○○ is consistent with the plaintiffs' assertion that they are merely shareholders in the form of the non-party company, and it is hard to believe in light of the above facts of recognition. Some of the evidence Nos. 5-1, 2, 10-1 through 8, 10-1, 13-1, 2, 19-1, and 2-1, 2, and 2-19 of the evidence Nos. 5-1, 13-2, and 19-2, and there is no other evidence to acknowledge them. However, according to the above facts, since the plaintiffs owned 60% of the non-party company's stocks as of the date of establishment of the tax liability of this case, the plaintiffs cannot be found to have been in violation of Article 39 (2) of the Framework Act on National Taxes, Article 20-1, and 39 (1)-2 of this case.

3. Conclusion

Therefore, the plaintiffs' claim seeking the revocation of the disposition of this case is dismissed as it is without merit. It is so decided as per Disposition.

List of Taxation Disposition

Items of Taxation

Date of establishment of tax liability;

Amount of tax in arrears of the non-party company

Plaintiff ○○○ (won)

Plaintiff ○○○ (won)

Date of Disposition

Ministry of Justice

(A)

(A)

Paz

tax

For the second period, 2001

December 31, 2001

1,626,300

504,140

5691,190

on June 2, 2004

For the first term, 2002

June 30, 2002

6,012,290

1,863,800

2,104,290

on June 2, 2004

For the second period, 2002

December 31, 2002

3,371,740

1,045,230

1,180,100

on June 2, 2004

For the first term, 2003

June 30, 2003

14,181,190

4,396,150

4,963,390

on June 2, 2004

For the first term, 2003

December 31, 2003

45,671,150

14,158,020

*15,984,890

on June 2, 2004

For the first term, 2004

June 30, 2004

10,105,680

3,132,760

3,536,990

April 21, 2005

Law

person

tax

202. Business Year

December 31, 2002

12,190,460

3,779,040

4,266,670

April 21, 2005

203 Business year

December 31, 2003

3,646,040

1,130,260

1,276,100

on June 2, 2004

[Lawsuit]

acquisition

tax

(C) Won

Sector to be Collected)

The portion of October 2003

o October 31, 2003

32,150

9,950

11,240

on June 2, 2004

The portion of December 2003

December 31, 2003

90,330

28,000

31,620

April 21, 2005

January 2004

January 31, 2004

90,330

28,000

31,620

2. 204

Total

97,017,690

30,075,350

**33,956,100

* The portion of value added tax for the second term portion in 2003 of the above Table is the sum of 8,703,400 won for the preliminary return on September 30, 2003 and 7,281,490 won for the final return on December 31, 2003 (the sum of the amount of value added tax for the first term portion in 203 plus the amount for the preliminary return and the amount for the final return).

** The Plaintiff’s total amount of tax imposed on Plaintiff ○○ on the Plaintiff ○○ in the attached list of the tax assessment disposition that was written as KRW 3,956,029 is due to the fact that the final tax return amounting to KRW 7,281,490 on December 31, 2003 of the value-added tax for the second period portion of the Value-Added Tax was erroneously written as KRW 7,281,419.

Related Acts and subordinate statutes

Basic Act

Article 39 (Secondary Tax Liability of Contributors)

(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 tax, additional dues, and disposition fee for arrears that the corporation has imposed on or is to pay, the person who falls under any of the following subparagraphs as of the date on which the liability to pay national taxes is established shall assume secondary tax liability for such shortage: Provided, That in the case of an oligopolistic stockholder under subparagraph 2, the limit shall be 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 the

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

(a) A person who actually exercises the rights to 51/100 or more stocks or shares out of the total number of issued stocks or investments of the relevant corporation;

(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 amount of stocks held or investments made by him is not less than 51/100 of the total number of stocks issued or investments made by the juristic person concerned (hereinafter referred to as “excess stockholder”).

• With the amendment by Act No. 7008 of Dec. 30, 2003, the bottom of the above protection was added, but there is no change in any other content.

Enforcement Decree of the Framework Act

The term “relatives and other persons having special relations as prescribed by the Presidential Decree” in Article 39 (2) of the Act means those who fall under any of the following subparagraphs: Provided, That in case where a stockholder or a partner with limited liability is a woman, he shall be subject to the relationship with her husband except in the cases of subparagraphs 9 through 13:

5. The spouse (including the person in de facto marital relations);

Finally.