The secondary tax liability of oligopolistic stockholders

The de facto controlling the management of a corporation is a third party, and it cannot be deemed that the plaintiffs exercised a de facto right to the shares owned by each party, so it cannot be deemed an oligopolistic shareholder.

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

1. The Defendant’s imposition of KRW 125,864,010 of corporate tax for the business year 2007 against the Plaintiffs on June 13, 2008 and KRW 31,702,330 of value-added tax for the second period of 2007 shall be revoked.

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

The same shall apply to the order.

1. Details of the disposition;

A. BB Co., Ltd. (hereinafter “B”) was imposed by the Defendant on March 5, 2008 KRW 419,546,710 for the business year 2007, and value-added tax for the second period of 2007, respectively, and did not pay it.

B. Accordingly, the defendant deemed that the plaintiffs are oligopolistic shareholders of BB under Article 39 of the Framework Act on National Taxes, and on June 13, 2008, the defendant imposed and notified the plaintiffs of KRW 125,864,010 corporate tax in the business year of 2007 and value-added tax 31,702,330 for the second period of 207 (hereinafter "the disposition in this case").

C. On January 19, 2009, the Plaintiffs appealed to the Tax Tribunal for the revocation of the instant disposition, but was dismissed on April 24, 2009.

[Ground of recognition] Facts without dispute, Gap evidence 1 and 2, each of Gap evidence 1 to 3, Gap evidence 7, the purport of whole pleadings

2. Whether the disposition of this case is legitimate

A. The plaintiffs' assertion

B is, in fact, one company of the U.S.A. and is merely a formal shareholder when the U.S.A. establishes BB, and it does not constitute an oligopolistic shareholder with the secondary liability for tax payment since the Plaintiffs did not participate in the management of BB or exercise shareholder rights. Therefore, the instant disposition is unlawful.

(b) Related statutes;

As shown in the attached Form.

(c) Fact of recognition;

1) On October 14, 2005, U.S.A established BB for the purpose of purchasing the construction site. Upon the request of the U.S.A., Plaintiff MaximumD and his children accepted 1,500 shares of 5,00 shares (amount of 10,00 shares) issued by BB as the promoters of the BB establishment upon the request of the U.S.A., and the rest of shares was 50 shares of the U.S.A. 1,500 shares, and the other children of Plaintiff MaximumD acquired 50 shares.

2) At the time of establishment of BB, the representative director was listed in the corporate register in the United StatesA, the board of directors, the Plaintiff LA and EA, and the auditor respectively in the largest interference. The status of the ownership and the executive officers as seen earlier were maintained even on December 31, 2007.

3) At the time of the establishment of BB, the Plaintiff most recently lent KRW 50,000,000 necessary for the payment of the share capital to the U.S.A. at the time of the establishment of BB, BB lent money to the U.S. on October 17, 2005 and lent money to the U.S.A. on several occasions until January 2007 as the operating capital of BB, and used the high-class car offered by B without compensation.

4) At the time of the establishment of BB, Plaintiff LCC, who had worked in the party room operated by Plaintiff ChoiD without any special occupation, had been able to prepare documents, remain in mind, and issue documents at the request of the U.S.A., and received monthly wages of KRW 1 million or KRW 1.2 million from the U.S.A. to the U.S. office in October 2005.

5) BB did not pay dividends to the Plaintiffs and the largest interference, nor did it lead to a general meeting of shareholders or the board of directors.

6) Meanwhile, on the other hand, on December 4, 2008, the United StatesA was sentenced to a judgment of two years preceding the crime of occupational embezzlement, the violation of the Commercial Act, and the suspension of execution three years against the fact that the amount of the BB was used for personal purposes by the United StatesA on December 4, 2008 for the personal purpose, and the fact that the payment of the share price was pretended when establishing BB (Seoul District Court 2008Dahap467). According to the above judgment’s statement, BB was considered as a reason for discretionary mitigation.

[Ground of recognition] The facts without dispute, Gap evidence 3-1, Gap evidence 6-1, Gap evidence 11-1, Gap evidence 20-1, Gap evidence 20-2, Gap evidence 23-1, Gap evidence 27, 30, Gap evidence 35-1, Gap evidence 36, 37, 38, 43, 44, Eul evidence 12, Eul evidence 11-1, Gap evidence 20-22, Gap evidence 23-1, Gap evidence 37, 35-1, Gap evidence 36, 37, 37, 37, 38, 43, 44, Eul evidence 1-12, Eul evidence Kim E, UF testimony, the purport of all pleadings

D. Determination

1) According to Article 39(1)2(a) and (b) of the Framework Act on National Taxes, in order to erase the secondary tax liability to the shareholders of a corporation, one of oligopolistic shareholders exercises a substantial right to shares exceeding 50/100 of the total number of issued and outstanding shares of the relevant corporation, or (2) constitutes a person who actually controls the management of the corporation regardless of the name, such as

2) We examine whether the plaintiffs are oligopolistic shareholders who are subject to secondary tax liability by practically exercising the rights to BB's shares or by de facto controlling the management of the corporation. As seen earlier, it is insufficient to recognize that the plaintiffs actually exercised the rights to BB's shares or actually controlled BB's management. Rather, there is no evidence to acknowledge otherwise, the plaintiffs were to acquire B's shares in order to guarantee BB's management, and not to participate in the operation of BB's management, and the plaintiffs were to have lent the operating funds to the U.S.A. to the U.S. office, and the plaintiffs were to have been given a high-class car from BB, and the plaintiffs were to have been given a part of the monthly wage. In light of the fact that the plaintiffs were to have been given a high-class car from the MaximumCC's work, and that the plaintiffs were to exercise the rights to the oligopolistic shareholders, not to have been actually controlled by the plaintiffs, in light of the fact that the plaintiffs actually owned the rights to the 2A's testimony and management.

3. Conclusion

Therefore, the plaintiff's claim is reasonable and acceptable, and it is so decided as per Disposition.