It is reasonable to view that the plaintiff does not fall under the oligopolistic shareholder who bears the secondary tax liability for the delinquent corporate tax, etc. of AA Construction.

It is reasonable to view that the Plaintiff is merely a shareholder in the form at the time when the liability to pay delinquent corporate tax, etc. for AA Construction was established and does not constitute an oligopolistic shareholder who bears the secondary liability to pay delinquent corporate tax, etc.

Article 39 (Secondary Liability to Pay Taxes by Investor)

2016Nu67532 Revocation of revocation of designation as a person liable for secondary tax payment.

Kim Ho-su

BB Director of the Tax Office

Suwon District Court Decision 2016Guhap51 Decided August 30, 2016

June 2, 2017

July 14, 2017

1. Revocation of a judgment of the first instance;

2. On March 23, 2015, the Defendant revoked the imposition disposition of KRW 1,979,470, corporate tax for the year 2010, KRW 24,280, and KRW 98,030, corporate tax for the year 2011, KRW 49,050, corporate tax for the year 2012, KRW 8,625,530, and KRW 1,629,790, value-added tax for the year 2012, KRW 7,35,50,50, and value-added tax for the year 2012, KRW 6,68,190, KRW 13,069,020, and KRW 5,720 for the year 2012.

3. All costs of the lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. Details of the disposition;

The reason for this part of the judgment is that "CC Construction" in two pages of the first instance judgment is "D Construction", "2 9,541,679 won" in "39,54,679 won" in "39,514,679 won", and "the defendant" in the second 6th 2nd 2nd 6th 2nd 2nd 3th 2015 and the corresponding part of the judgment of the first instance (2th 1th 2th 1th 13th 2th 2th 2th 3th 2015)" are the same. Thus, this part of the judgment is cited in accordance with Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act

2. Whether the instant disposition is lawful

A. The plaintiff's assertion and relevant statutes

This part of the judgment of the court of first instance is corresponding to the corresponding part of the judgment of the court of first instance (2), 15 to 20.

Since land, five to seven pages are the same, it shall be quoted in accordance with Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

C. Determination

1) Relevant legal principles

Article 39(2) of the former Framework Act on National Taxes (Amended by Act No. 11124, Dec. 31, 201)

Whether it constitutes an oligopolistic shareholder under Article 39 subparagraph 2 of the former Framework Act on National Taxes (amended by Act No. 11845, May 28, 2013) shall be determined by whether it is a member of a group of shares owned by at least 51/100 in a special relationship. The fact of ownership of shares is sufficient for the tax authority to prove it by the list of shareholders, a statement of stock transfer or the list of the certified transcript of a company, etc. However, even AA, which appears to be a single shareholder in light of the above data, was made by stealing the name of

AA under the circumstances such as the registration in the name of a person who is not the actual owner, cannot be deemed as a shareholder only under its name, but this should be proved by the nominal owner who asserts that he/she is not a shareholder (see, e.g., Supreme Court Decisions 2003Du1615, Jul. 9, 2004; 2008Du983, Sept. 11, 2008).

In addition, in light of the legislative intent and amendment process of the above provision, in order to constitute “the exercise of rights to shares exceeding 50/100” as referred to in the above provision, there must be at least a position to exercise shareholders’ rights to the shares held as at the time when the tax liability is established, even if there is no actual exercise of shareholders’ rights (see, e.g., Supreme Court Decision 2008Du983, Dec. 26, 2012). Therefore, AA, which was not likely to exercise shareholders’ rights as at the time when the tax liability is established, has no possibility of exercising shareholders’ rights (see, e.g., Supreme Court Decision 201Du92

(ii) the facts of recognition

A) AA Construction was established on June 9, 2003 with capital of 200 million won, and on December 30, 2004

Paid-in capital increase of KRW 400 million.

B) EE, the representative director of AA Construction, is the Plaintiff’s form, and not only the EE but also the Plaintiff’s leakage or FF, and the Plaintiff owned the shares of AA Construction from the time of its establishment to the date of its establishment of tax liability, such as corporate tax in arrears, as indicated in the following table. The Plaintiff was registered as a director of AA Construction from the time of its establishment to June 9, 2006.

C) According to the comprehensive national tax network, the Plaintiff was from AA Construction to KRW 5,100,000, 2006

Although it is confirmed that the benefits of KRW 850,000 have been paid each year, there are no materials that have been paid thereafter.

D) AA Construction does not have any distribution to shareholders until its closure on April 29, 2013, nor did it hold a proper general meeting of shareholders or board of directors.

[Ground of recognition] Unsatisfy, the above quoted evidence, Gap 2 through 9, 11, 12, 13 (each number)

(B) the purport of the entire testimony and pleading of EE witness of the party;

3) Whether the Plaintiff is merely a shareholder in the form of AA Construction

The following circumstances recognized as a comprehensive basis of the above quoted evidence in the facts acknowledged earlier:

In light of the above, it is reasonable to view that the Plaintiff was registered as a primary shareholder of AA Construction upon the request of the EE EE, which was actually owned by the Plaintiff, and therefore, it does not constitute an oligopolistic shareholder who is merely a nominal shareholder as of the date when the liability to pay delinquent corporate tax, etc. of AA Construction was established, and thus, it does not constitute a secondary liability to pay delinquent corporate tax, etc. of AA Construction. Therefore, the instant disposition should be revoked on a different premise

A) The Plaintiff’s shares of AA Construction held by the Plaintiff after the instant disposition was held in title trust

The consistent assertion was consistently made, and each confirmation document prepared by EE and HH, the representative director of AA Construction, is supported.

(B) In particular, EE appears as a witness in this Court, and it has been established independently by lending 400 million capital stock as a shareholder, and 4 or more shareholders, 4 or more technical experts.

In order to meet the requirements for the establishment of a construction company, the name of the plaintiff, etc. is lent to the shareholders and the directors, and the shareholders' general meeting or the board of directors of the AA Construction only made documents, and the plaintiff offered convenience for the plaintiff to join the AA Construction Medical Insurance for the resolution of the plaintiff's medical expenses after retirement from the company that was attending around May 2014 on the grounds of health, but the plaintiff did not actually worked as a director or employee of the AA Construction, and there was no dividend, etc. to the shareholders or directors of the AA Construction.

C) Although the Plaintiff stated that he was registered as a director on the corporate register of AA Construction and received money in excess of a certain amount of money from the date of 2005 and around 2006, there is no evidence to acknowledge that he had received benefits until the date of establishment of tax liability, such as corporate tax in arrears, etc., and there is no evidence to deem that the Plaintiff exercised its rights as a shareholder, such as receiving dividends or exercising voting rights

D) Even if the Plaintiff did not specifically raise an objection to, or endeavor to restore the name of, the shareholder title trust until before the Plaintiff was designated as a secondary taxpayer of AA Construction’s secondary liability for tax payment, it is difficult to deem that the Plaintiff was in a position to exercise shareholder rights by following the circumstances acknowledged by the Plaintiff solely on the ground that the Plaintiff did not have any special losses arising from, such title trust in the situation where the said facts were not located.

3. Conclusion

If so, the plaintiff's claim shall be accepted on the ground of its reasoning. The judgment of the court of first instance reaches this conclusion.

Since it is unfair, it shall be revoked, and the disposition of this case shall be revoked.