The secondary taxpayer of an oligopolistic stockholder

In order to obtain the repayment of the damage claim due to embezzlement, the entire stocks owned by the non-party company were acquired by the non-party company, but it seems that the tax authority did not report the damage claim to the non-party company.

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

1. On October 10, 2008, the Defendant confirmed that each imposition of value-added tax of 493,366,300 won for the first term portion for the year 2007 against the Plaintiff, and value-added tax of 919,054,120 for the first term portion for the year 2008, and value-added tax of 127,015,750 for the first term portion for the year 2008 is null and void.

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

The same is as the disposition (the amount of each disposition for imposition of the complaint of this case shall be deemed to have been made by mistake of the plaintiff, as the amount of each disposition for imposition of this case is deemed to have been omitted, and thus, it shall be deemed to have been sought for confirmation

1. Circumstances of the disposition;

A. The Plaintiff (the trade name at the time of its establishment was changed to △△△ specialized company, but the company was changed to △△ specialized company, which was changed to △△ specialized company) was a corporation engaged in the performance business of containers established on November 8, 2007, and the Plaintiff’s corporate register and ○○○○○ corporation (hereinafter “Nonindicted Company”) owned 19,900 shares of the Plaintiff as listed in the following table.

B. On July 18, 2008, when the above tax was delinquent, the Defendant seized 19,90 shares of the Plaintiff owned by the non-party company on October 10, 2008, and imposed each value-added tax on the tax amount in arrears by the non-party company, which is the oligopolistic shareholder of the Plaintiff, designated the Plaintiff as the second taxpayer and the Plaintiff as the second taxpayer under Article 40(1) of the former Framework Act on National Taxes (amended by Act No. 9263, Dec. 26, 2008; hereinafter referred to as the “former Framework Act on National Taxes”).

[Ground of Recognition: Facts without dispute, Gap 1, 2 (including each number), Eul 1-1, Eul 3-8 (including each number), the purport of the whole pleadings]

2. Whether the imposition disposition of the instant case is lawful; and

A. The plaintiff's principal

The non-party company was owned on April 17, 2008 by all the Plaintiff’s shares 19,900 shares to the Plaintiff, and thus, the Plaintiff was not in the position of the secondary taxpayer with respect to the delinquent tax amount of the non-party company, and the non-party company was not in the position of practically controlling the Plaintiff’s operation as an oligopolistic shareholder. Accordingly, the instant disposition of imposition against the Plaintiff without the Defendant’s tax liability is invalid.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

First of all, the non-party company is an oligopolistic stockholder of the plaintiff.

(1) Article 40 (1) of the former Framework Act on National Taxes provides that "where the property (except for shares issued or equity shares invested by the juristic person in question) of the partners with unlimited liability or oligopolistic stockholders (hereinafter referred to as "contributors") of the juristic person at the expiration of the payment period of national taxes (in case of two or more national taxes, the national taxes that comes later), is insufficient to cover the national taxes, additional dues, and disposition fee for arrears that are to be paid by the investors, the juristic person shall be liable to pay for the shortage within the limit of the value of shares owned or equity shares owned by the investors and its partners, and Article 39 (2) of the same Act provides that "a person whose total amount of shares owned or equity shares exceeds 50/100 of the total number of shares issued or total amount invested by the juristic person in question" shall be construed as "a person who has a relative or

In such a case, whether it is an oligopolistic shareholder shall be determined by whether it is a member of a group of stocks owned by the majority, and even if there is no fact involved in the management of the company, it shall not be determined solely by the fact that it is not an oligopolistic shareholder. The fact of ownership of stocks shall be proven by the tax authority through the data such as the register of shareholders, the statement of stock movement or the register of corporate register, etc. However, even if it appears to be a single shareholder in light of the above data, if there are circumstances, such as where the name of the shareholder was stolen or the registration was made in a name other than the name of the real shareholder, it shall not be deemed to be a shareholder only under such name (Supreme Court Decision 20

(Supreme Court Decision)

(2) 갑 3 내지 11호증(각 가지번호 포함)의 각 기재, 증인 김AA, 구BB의 각 증언에 변론 전체의 취지를 종합하면, 원고는 '△△ 콘서트'(이하 '이 사건 공연'이라 한다)라는 특정 문화사업만을 수행하기 위하여 문화산업진흥 기본법에 따라 설립된 문화전문회사로서 이 사건 공연만을 진행하고 해산할 것을 예정한 특수 목적 회사인 사실, 원고는 문화산업진흥 기본법에 따라 문화산업에 속하는 문화상품의 기획 ・ 개발 ・ 제작 ・ 생산 ・ 유통 및 소비 등과 이에 관련된 서비스, 문화상품의 관리 ・ 운용 및 처분 등에 관한 업무를 사업관리자인 주식회사 ▲▲연구소(이하 '▲▲연구소'라 한다)에 위탁하였고, 자금 또는 자산의 보관 ・ 관리에 관한 업무 등을 자산관리자인 ◆◆투자증권 주식회사(이하 '◆◆투자증권'이라 한다)에게 위탁한 사실, 이 사건 공연의 공연기획사로 홍보 및 마케팅 업무를 담당한 소외 회사는 문화산업진흥 기본법에 따라 문화산업전문회사인 원고를 설립하는 데 필요한 설립자본금 1억 원을 출자하고 원고의 주식 19,900주(1주당 액면가 5,000원)를 취득한 사실, 원고의 자산관리자인 ◆◆투자증권은 이 사건 공연을 전국 주요 도시에서 진행하기 위한 자금이 필요하여 투자자 등으로부터 합계 11,593,000,000원을 모집하여 원고에게 출자하였고, 원고는 주식 1주(액면가 5,000원)의 발행가액을 100만 원으로 한 유상증자 절차를 밟아 ◆◆투자증권의 출자금에 대응한 주식(11,593주)을 발행하여 ◆◆투자증권이 이를 취득한 사실, 원고는 이 사건 공연을 시작하기 전에 ◆◆투자증권으로부터 받은 출자금 중 38억 원을 소외 회사에게 송금하여 가수 조CC의 소속사에 개런티로 지급하게 하였으나, 소외 회사는 이를 전달하지 않고 횡령한 사실, 이에 ◆◆투자증권은 소외 회사를 횡령 등 혐의로 형사 고발하였고, 원고는 2008. 4. 17. 소외 회사와 사이에, 소외 회사가 소유하고 있는 원고의 주식 19,900주를 양도금액 99,500,000원으로 정하여 양수하는 계약을 체결한 사실, 위 계약 체결 당시 소외 회사가 위 횡령금을 변제하면 소외 회사가 지출한 원고의 설립자본금을 반환해 달라고 요구하여 주식 양도대금을 99,500,000원으로 정하였는데, 원고는 위 횡령금을 변제받지 못하여 위 양도대금을 소외 회사에게 지급하지 않은 사실을 인정할 수 있고, 달리 반증이 없다.

According to the above facts of recognition, the plaintiff is a means to recover the damage claim arising from the embezzlement of the non-party company. On April 17, 2008, the plaintiff could have received all the plaintiff's shares owned by the non-party company, but could not be reported to the tax authority. According to this, the non-party company is not the plaintiff's oligopolistic shareholder as of September 30, 2008 (the payment deadline for the first period of value-added tax for the first period of 2008, which became due after the due date for payment pursuant to Article 40 (1) of the Framework Act on National Taxes), which became due after the due date for payment of each value-added tax disputed in this case (the payment deadline for value-added tax for the first period of 2008, which became due after the due date for payment pursuant to Article 40 (1) of the same Act).

(3) Therefore, the instant disposition is null and void without examining the remainder of the Plaintiff’s assertion, and the Plaintiff’s assertion is with merit.

3.In conclusion

The plaintiff's claim shall be accepted with due reason.