Whether a secondary taxpayer is a secondary taxpayer or not

It is reasonable to view that most of the rights of the company were transferred, and there was no participation at the general meeting of shareholders after the transfer of all documents, such as a resignation related to the shares and management rights, and a statement of waiver of shares, and that there was registration as a corporate shareholder in the form of a preliminary judgment in the lawsuit related

Article 39 (Secondary Liability for Tax Payment of Contributors)

1. The Defendant’s imposition of KRW 1,076,150 as corporate tax for the year 2005 against the Plaintiff on May 25, 2007 and KRW 8,766,80 as corporate tax for the year 2005 shall be revoked in entirety.

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

The same shall apply to the order.

1. Details of the disposition;

A. The Plaintiff is currently registered as a shareholder who owns 66% of the total number of shares issued in the register of shareholders of ○○○○○○-dong, Incheon ○○○○-dong ○○-35 ○○tel 503, a company located in ○○○○○○, Inc. (which was changed on February 25, 2005, hereinafter referred to as “non-party company”).

B. The defendant did not pay corporate tax of KRW 1,583,050 in 2005 and KRW 12,896,160 in 2005 and KRW 12,896,160 in 205, and thus the plaintiff is an oligopolistic shareholder holding 66% of the total number of outstanding shares of the non-party company, and the plaintiff is designated as the secondary taxpayer in accordance with the records under Article 39(1)2 of the Framework Act on National Taxes, and on May 25, 2007, the non-party company imposed corporate tax of KRW 1,076,150 in 205, corporate tax of KRW 1,076,150 in 205, and value-added tax of KRW 8,76,80 in 205 (hereinafter "the disposition in this case").

C. The plaintiff appealed and filed an appeal with the National Tax Tribunal on June 1, 2007, but the National Tax Tribunal dismissed the plaintiff's appeal on October 25, 2007.

[Ground of recognition] Facts without dispute, Gap evidence 1-2, Gap evidence 17, Eul evidence 1-2, Eul evidence 1-2, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

On the register of shareholders of the non-party company, the Plaintiff is registered as a shareholder holding 66% of the issued shares on the register of shareholders of the non-party company. However, in fact, the Plaintiff acquired the total shares of the non-party company and held a title trust to the non-party company, to the non-party company, but decided to transfer the shares to the non-party company to the ○○○ and the non-party company on July 2004, the Plaintiff did not entirely exercise the substantial right to the shares by transferring all the shares owned by the Plaintiff to the ○○ and the non-party company to the ○○○○, and thus, the Plaintiff cannot be deemed as an oligopolistic shareholder liable

(b) Related statutes;

Article 39 (Secondary Liability for Tax Payment of Contributors)

(c) Fact of recognition;

(1) On September 17, 2003, the Plaintiff established a non-party company for the purpose of providing Internet Education Contents (hereinafter referred to as “the company’s trade name at that time”) along with Kim ○ and Choi Jin, etc. The Plaintiff acquired 6,600 shares out of 10,000 shares issued, 1,200 shares in Kim ○, and 2,200 shares in each case.

(2) On February 16, 2004, Kim Jong-jin, the largest ○, left from the above partnership and decided to accept all the shares of Kim ○ and the highest ○jin. However, the Plaintiff’s shares held by 3,000 shares were transferred in the name of this ○○ Order, and 1,000 shares were held by ○○○ Year, 2,60 shares were held in title trust to ○○○○ Order, respectively, on February 16, 2004, prepared a sales contract of shares with the purport to sell each share to ○○○ Order, Kim Jong-jin, the largest ○, the Plaintiff, the number of shares held by ○○, and ○○ Year-do. On the same day, this day was the representative director of the non-party company, the number of shares held by the non-party company as the representative director, the number of shares held by ○○ and the change of ownership was not made in the register of shareholders of the non-party company, but on the same day.

(3) After July 13, 2004, the Plaintiff decided to transfer the company to the non-party company to the ○○○○○ (hereinafter referred to as “○○○”). On the other hand, the Plaintiff entered into a contract for transfer of the company to the ○○○○○○○○ (hereinafter referred to as “instant contract”) with the content that the Plaintiff will attract investors in the future, guarantee 30 million won after the completion of investment, and provide 1/3 of the shares other than the investor’s shares to the Plaintiff free of charge, and the Plaintiff issued to the ○○○○○○○, etc. the previous representative director of the company, the director’s resignation and the certificate of waiver of share certificates.

(4) On August 31, 2004, the Plaintiff, among the terms and conditions of the instant contract, sold at least KRW 20,000,000 to the largest exchange, etc., which the Plaintiff had originally decided to hold among the terms and conditions of the instant contract. The Plaintiff revised the terms and conditions of the instant contract to sell KRW 10,000,000 to the Plaintiff for 10,000 shares, which the largest exchange, etc. offered to the Plaintiff by inviting investors in the future. Thereafter, on November 13, 2004, the Plaintiff was deemed to hold the said terms and conditions of the instant contract. However, on the other hand, the portion that the Plaintiff agreed to receive KRW 10,00,000,000, in lieu of the shares that the Plaintiff had to receive as the corporate transfer price, maintained the agreement to receive said amount as KRW 3,00,000 on November 30, 204; and each of the agreed to receive KRW 30,000,400.

(5) On July 26, 2004, the maximum exchange, etc. replaced the representative director, director, executive secretary of the non-party company into ○○○○○, Hu○○○, Hu○○○, Hu○○○, Ma○○○, Ma○○, Ma○○○, Ma○○, and Ma○○○○○○, Ma○○○, and Ma○○○○○, 503. On February 25, 2005, the location of the principal office was transferred to ○○○○○○○○-35, Incheon. On February 25, 2005, the non-party company’s representative director, director, auditor, Kim○, Kim○, ○○, and the name of the corporation was replaced to 'Y○○○,’ and added telecommunications sales business, electronic commerce, bakbak, and Jeju and sales

(6) On July 26, 2004 and February 25, 2005, the non-party company held a general meeting of shareholders on two occasions to change the location of its head office, change the officers, and change the trade name as above. The above general meeting of shareholders was only present as a shareholder in Kim○-ok, Go○-si, Jeon Il-ju, Kim○-so, Kim○-so, and Kang Jong-chul, and the plaintiff did not participate in the above general meeting of shareholders.

(7) On the other hand, on December 13, 2004, the largest exchange remitted only KRW 1,000,000 on December 24, 2004, and KRW 8,500,000 on December 24, 200, and did not pay the remainder of KRW 8,50,000. On the other hand, on July 23, 2007, the Plaintiff filed a lawsuit against the largest refund seeking payment of the corporate transfer price and filed a lawsuit against the Plaintiff for payment of KRW 8,50,000 and damages for delay.

[Ground of recognition] Facts without dispute, Gap evidence 2 through 20 (including additional numbers), evidence 22-1 and 22-2, the purport of the whole pleadings

D. Determination

(1) In order to have a shareholder of a corporation bear the secondary tax liability, the shareholder must actually hold the corporation’s shares as an oligopolistic shareholder who is owned in excess of 50/100 of the total number of shares issued by the corporation. Only if the shareholder is registered as a shareholder in the shareholder registry of the corporation in its form, the tax authority shall not impose the tax liability. However, the tax authority shall have the burden of proving the burden of proof. However, the tax authority must prove it by the data such as the shareholder registry, the statement of stock transfer, and the list of the corporate register, and the fact that the shareholder appears to be a single shareholder in light of the above data, but it shall be proved by the nominal shareholder that the shareholder is not a real shareholder, unlike the nominal shareholder because of the circumstances such as the illegal use of the shareholder registry or the registration in the name other than the real shareholder registry (see, e.g., Supreme Court Decisions 2003Du1615, Jul. 9, 2004; 95Nu13023, Dec. 12, 1995).

(2) As to the instant case, the Plaintiff owned the total shares of the non-party company and took the position of the representative director and director of the non-party company in the family relationship. However, from July 2004 to November 2004, the Plaintiff decided to transfer all rights except the content of the non-party company’s video class to the largest ○○, etc. during the non-party company’s stock and management right, and transferred all documents, such as resignation related to the non-party company’s stock and management right and the certificate of waiver of share certificates to the largest ○, etc. The Plaintiff transferred the name of the non-party company to the non-party company after the transfer of the non-party company, replaced all the officers of the non-party company. On February 2005, the Plaintiff added to the non-party company’s name of the non-party company to the non-party company’s purpose business, but did not have the right to claim the payment of the 100 won shares to the non-party company, the Plaintiff’s remaining 100 won was already held.

(3) Therefore, the Defendant’s disposition that deemed the Plaintiff as the secondary taxpayer by Nonparty Company is unlawful.

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is decided as per Disposition by admitting it.