Plaintiff (Law Firm Sejong, Attorneys Oi-soo et al., Counsel for the plaintiff-appellant)

Head of Namyang District Tax Office

March 27, 2012

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 global income tax of KRW 94,944,380 for the Plaintiff on November 3, 2009 shall be revoked.

1. Details of the disposition;

A. From January 28, 2005 to June 2, 2006, the Plaintiff served as the sole representative director of cellex Co., Ltd. (hereinafter “Nonindicted Company”), and from June 2, 2006 to November 8, 2006, the Plaintiff served as the joint representative director of the Nonparty Company, together with Nonparty 2.

B. After conducting a tax investigation on the non-party company for the business year 2004-2006, the director of the Central District Tax Office imposed corporate tax and value-added tax on the non-party company for KRW 332,37,061 which was confirmed as the processing purchase amount for the business year 2006, while disposing of KRW 29,139,355 out of the above processing purchase amount included in the corporate income in calculating corporate income as bonus to the plaintiff (or KRW 33,237,706 was disposed of as bonus to the non-party 2), and notified the non-party company of the change in income amount.

C. However, the non-party company closed its business without collecting and paying the above labor income tax, and on July 3, 2007, the director of the Central Tax Office again issued a notice of change of income amount (hereinafter “instant notice of change of income amount”) to the Plaintiff, and the Plaintiff did not return and pay the comprehensive income tax. On November 3, 2009, the Defendant decided and notified the Plaintiff of KRW 135,385,260, global income tax for the year 2006.

D. On June 29, 201, the Tax Tribunal filed a request for a judgment against the Plaintiff. On June 29, 201, the Tax Tribunal rendered a decision for partial recognition that “The disposition of imposition of KRW 135,385,260, global income tax for the Plaintiff on November 3, 2009, which was imposed by the Defendant on the Plaintiff on the Plaintiff on the Plaintiff on November 3, 2006, re-calculated the amount of bonus disposition for the Plaintiff according to the number of days during which the period of service is in accordance with Article 54 of the Enforcement Rule of the Corporate Tax Act and corrected the tax base and tax amount.” Accordingly, the Defendant issued a disposition to reduce the amount of total income tax to KRW 94,94,380 (hereinafter “instant disposition”).

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 4, 17, Eul evidence No. 1, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) First, the plaintiff was registered as the representative director on the corporate register of the non-party company from January 1, 2006 to November 8, 2006. However, the actual control over the management of the non-party company during the above period is the non-party 1 and the non-party 2 who held not less than 30/10 of the total number of issued and outstanding shares of the non-party company, and the plaintiff was not only a representative in the form of form. Thus, the disposition of the non-party company and the disposition of this case based on this was unlawful.

(2) Second, the notification of the change in the amount of income to the plaintiff should be made by the head office of Dong-ju or the head office of Daejeon Regional Tax Office having jurisdiction over the location of the head office on the register of the non-party company. However, the director of Jung-gu Regional Tax Office without authority made the notification of the change in the amount of income. Therefore, the part

B. Relevant statutes

The entries in the attached Table-related statutes shall be as follows.

(c) Markets:

(1) Judgment on the plaintiff's first argument

Any person who actually exercises the authority of a representative director and actually participates in the management shall be deemed the representative who is subject to the disposition by recognizing the representative, and shall not be deemed the nominal representative director solely on the ground that there is a separate controlling shareholder (see Supreme Court Decisions 2005Du8030, Jan. 18, 2008). Furthermore, the fact that the tax office constitutes the representative director of a corporation who is subject to the disposition of income by recognizing the representative shall be proved by the data, such as the register of corporate register, etc., and the person who asserts the fact that the representative is not the actual representative shall prove the fact that the representative is not the representative director, even though he is registered as the representative director on the register of corporate register. Therefore, the fact that the representative in the name shall be proved by only lending the name and not exercising the real representative authority (see Supreme Court Decisions 84Nu68, Jun. 26, 1984; 2003Du1615, Jul. 9,

Comprehensively taking account of the purport of the entire pleadings in relation to this case, evidence Nos. 5, 13, and 14, the Plaintiff entered into each investment contract with Nonparty 1 (O. 4, 2005) and Nonparty 2 (O. 25, 2006) in order to raise funds necessary for the operation of the non-party company, and granted the status of a major shareholder to Nonparty 1 and Nonparty 2 in lieu of receiving investment from Nonparty 1 and Nonparty 2, and reported the management status, etc. of the non-party company to Nonparty 1 and Nonparty 2 in advance after consultation with the non-party 1 and Nonparty 2, and granted the right to demand the appointment of an executive officer. However, considering other evidence submitted by the Plaintiff in the above facts, the Plaintiff was merely a nominal representative director, and the actual control of the non-party company from January 1, 2006 to November 8, 2006, and there is insufficient evidence to find otherwise.

Rather, it is difficult to view that the Plaintiff’s management right was deprived of the Plaintiff’s non-party company’s non-party company’s non-party company’s management right, even if the Plaintiff, the Plaintiff, and the non-party 1, and the mobile home were based on the investment contract made between the Plaintiff, the non-party 2, or the mobile home, and the non-party company continued to operate the same as the previous one. However, the non-party company and the Plaintiff are deemed to additionally bear the duty of prior consultation, duty to report, and duty to appoint officers upon the request of the non-party 1 and the non-party 2, and it appears that the Plaintiff received the Plaintiff’s payment of investment money as promised by the non-party 1, as the manager of the non-party company, without confirming the fact that the Plaintiff was not in control over the non-party company’s company’s non-party company’s non-party company’s non-party company’s non-party company’s non-party 2 as its main source of investment contract. On the other hand, 206.1 through 206.

Therefore, the plaintiff's above assertion is without merit.

(2) Judgment on the second argument by the Plaintiff

The instant notice of change in the amount of income has already been in dispute, and the defect in the notice of change in the amount of income is not succeeded to the collection disposition, which is a subsequent disposition (see Supreme Court Decision 2009Du14439, Jan. 26, 2012). Therefore, whether the allegation in this part is legitimate or not is whether the notice of change in the amount of income by the tax authority without jurisdiction should be deemed to be null and void a year.

Therefore, the following facts are examined: ① the notice of change in the amount of income pursuant to the disposition of income issued by the tax authority as an administrative disposition subject to appeal litigation: (a) the head of a regional tax office rendered the en banc Decision 2002Du1878, Apr. 20, 2006; (b) the disposition of the notice of change in the amount of income itself was not recognized before the said judgment was rendered; and therefore, there was no clear provision on the disposition subject; and (c) even after the notice of change in the amount of income was considered as a disposition, the head of a regional tax office did not have any clear provision on the disposition subject; and (d) the head of a regional tax office or the head of a regional tax office issued the notice of change in the amount of income pursuant to Article 15(1) of the Act, which is the direction of the National Tax Service, issued the notice of change in the amount of income; and (d) the head of a regional tax office or the head of a regional tax office issued the notice of change in the amount of income pursuant to the above en banc Decision 20.

Therefore, the plaintiff's above assertion is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.

[Attachment Omission of Related Acts]

Judges Kim Su-cheon (Presiding Judge) Na Kim Jong-Un