Seoul Administrative Court 201Guhap18694 ( October 06, 2011)

National Tax Service Review and other 2011-006 (Law No. 17, 2011)

Only on the basis of the detailed statement of changes in stocks, etc., it cannot be readily concluded that the Plaintiff constitutes an oligopolistic stockholder of

Although the payment of subscription price and subscription price at the time of the incorporation and capital increase of the non-party company were made by the third party, the statement of stock fluctuation states that the plaintiff acquired and held shares. Thus, it cannot be readily concluded that the plaintiff is an oligopolistic shareholder of the non-party company on the sole basis of

Article 39 of the Framework Act on National Taxes

2011Nu37536 Revocation of Disposition of Imposition of Value-Added Tax

LAA

The Director of Gangnam District Office

Seoul Administrative Court Decision 2011Guhap18694 decided October 6, 2011

June 29, 2012

August 31, 2012

1. The defendant's appeal is dismissed.

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

1. Purport of claim

On November 6, 2010, the imposition of value-added tax of 000 won for the first period of 2009, which the Defendant designated the Plaintiff as the secondary taxpayer of BB Korea Co., Ltd. as the secondary taxpayer shall be revoked.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Details of the disposition;

The reasons for this part of the judgment of the court are as follows: Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act are the same as the entry of the corresponding part of the judgment of the court of first instance, and they are the same.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Although the Plaintiff, as an attorney-at-law, was registered as the auditor of the non-party company with the intention to take charge of legal advice for the non-party company, there was no fact that the Plaintiff acquired the stocks of this case, and at the time of incorporation of the non-party company and its capital increase, Kim J or KimCC, the husband of the non-party company, and KimD type acquired the stocks of this case, and at the time of reporting the non-party company's corporate tax for 2006 business year, the Plaintiff was registered as the shareholder of the non-party company as the second taxpayer of the non-party company. Thus

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Whether it constitutes an oligopolistic shareholder under Article 39(1)2 of the former Framework Act on National Taxes shall be determined by whether it is a member of a group of stocks owned by the majority and, in detail, even if it does not have any participation in the management of the company, it may not be determined that it is not an oligopolistic shareholder. The fact of ownership of stocks shall be proven by the tax authority based on the data, such as the list of stockholders, specifications of stock movement, corporate register, etc., and 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 name was registered in the name other than the real owner, the actual shareholder shall not be deemed to be a shareholder, but it shall be proved by the nominal shareholder who is not a shareholder (see, e.g., Supreme Court Decision 2003Du1615, Jul. 9, 204)

2) The health stand for the instant case, and the business year 2006 of the non-party company (from March 31, 2006 to December 2006)

31. According to the statement on the change of stocks, etc. (No. 2), it is recognized that the Plaintiff owns all 10,000 shares issued by the non-party company, and that there is no change in the transfer or acquisition of the non-party company's shares during the 2006 year. However, according to the overall purport of entry and pleading of the non-party company's 3, 11, and 12, and 4 through 13 (including each number), Z as promoters in the process of incorporation of the non-party company, the non-party company's general shares were not 5,00 won per share, and the non-party company's shares were 5,000 won under the name of the non-party company's representative director at the time of incorporation, and the non-party company's Z was able to be established with the non-party company's acquisition of the shares, and that the non-party company's Z were 5,000 won under the name of the non-party company's representative director at the time of the company.

3) Ultimately, the defendant's disposition of this case is unlawful, and the plaintiff's above assertion pointing this out is with merit.

3. Conclusion

If so, the plaintiff's claim is accepted due to the reason, and the judgment of the court of first instance is justified with this conclusion. The defendant's appeal is dismissed for lack of reason.