Cho Jae-2015-west-2021 (Law No. 22, 2015)

Since it is insufficient to recognize that the secondary taxpayer is a shareholder in the name of the name, the designation of the secondary taxpayer is legitimate.

The circumstance that there is another occupation or did not directly participate in the management is not compatible with the status of the shareholder, and such circumstance alone is insufficient to recognize that the plaintiffs are merely shareholders in the name of the plaintiffs.

Article 39 (Secondary Liability to Pay Taxes by Investor)

2015Guhap74326 The revocation of the designation as the person liable for secondary tax payment.

1. KimA2.B

O Head of tax office

April 21, 2016

May 26, 2016

1. Of the instant lawsuit, the part of the claim for revocation of the imposition of each additional charge listed in paragraphs 1 and 2 of the attached list and the corporate tax (including additional tax) listed in paragraph 1 of the attached list shall be dismissed.

2. The plaintiffs' remaining claims are dismissed.

3. The costs of lawsuit are assessed against the plaintiffs.

Cheong-gu Office

On October 23, 2014, the Defendant: (a) designated Plaintiff KimA on October 23, 2014; (b) Plaintiff JeonB on October 27, 2014, respectively, as the secondary taxpayer of each non-party corporation; and (c) revoked the disposition of imposition stipulated in the attached Tables 1 and 2.

1. Details of the disposition;

A. The details of changes in shareholders and executive officers of Nonparty XX Co., Ltd. (hereinafter referred to as “Nonindicted Company”) are as follows.

Detailed Statement of Change of Stocks

corporate register

Relation

Above December 18, 2012

Above December 18, 2012

Period

Positions and Positions

Nonparty KimCC

50%

50%

Above the year 1992

Representative Director;

Principal

KimA

20%

0%

Above the year 1992

Directors

Easterns

BB

10%

10%

Above 1992 up to 2007

Auditor

Eastern

B. On October 23, 2014, the Defendant: (a) designated the Plaintiffs as secondary taxpayers of the non-party company’s oligopolistic shareholder; (b) imposed the disposition indicated in paragraph (1) of the attached Table on October 23, 2014 on the Plaintiff KimA; and (c) imposed the disposition indicated in paragraph (2) of the attached Table on the Plaintiff B before October 27, 2014 (the above disposition is referred to as “the instant disposition” only as to the remaining disposition, excluding the part excluded from the subject of the judgment on the merits in paragraph (2) below).

C. The Plaintiffs were dissatisfied with each of the above dispositions and filed a request for a trial with the Tax Tribunal on April 20, 2015 upon filing an objection on December 5, 2014, but was dismissed on June 22, 2015.

[Reasons for Recognition] Facts without dispute, Gap evidence 1-1, 2, Gap evidence 2, 3, Eul evidence 1-1 to 8, Eul evidence 2, 3, Eul evidence 4-1, 2, Eul evidence 5-7, and the purport of the whole pleadings

2. Whether the lawsuit of this case is lawful

A. Part on the claim for revocation of the imposition of each additional charge listed in the separate sheet Nos. 1 and 2

A surcharge under Article 21 of the National Tax Collection Act is a kind of incidental tax imposed in the meaning of a interest in arrears, if national taxes are not paid by the due date, and if national taxes are not paid by the due date without the due date of payment by the due date without the due date of payment by the due date of payment by the due date, it naturally occurs under Article 21 of the same Act, and the amount thereof is also finalized. Thus, even if the tax authority notified the tax payment notice along with the additional dues, it cannot be deemed a disposition subject to appeal (see Supreme Court Decision 200Du2013, Sept.

In the case of this case, according to the evidence No. 1-1 and No. 2 of this case, it is recognized that the defendant notified the plaintiffs of the second taxpayer designation and payment notice as stated in the separate sheet No. 1 and No. 2, but it does not constitute a disposition subject to appeal. Thus, the plaintiffs' lawsuit seeking revocation of the above disposition of additional dues is unlawful.

B. Part of the claim for revocation of imposition of corporate tax (including additional tax) No. 9 of the attached list No. 1

According to the aforementioned disposition, the decision of the Tax Tribunal against the Plaintiffs was made on June 22, 2015, but was not included in the subject matter of a lawsuit at the time when Plaintiff KimA filed the instant lawsuit on September 18, 2015, or did not include the imposition of corporate tax (including additional tax) No. 9 listed in the attached Table No. 1 in the subject matter of a lawsuit. On January 22, 2016, it is apparent in the record that the relevant disposition was added to the subject matter of a lawsuit only when submitting the application for modification of the purport of the claim to this court on January 22, 2016. Thus, this part of the lawsuit is unlawful because it fails to comply with the 90

3. Whether the instant disposition is lawful

A. The plaintiffs' assertion

The Plaintiffs merely lent the name of a shareholder upon the request of Nonparty KimCC, and did not participate in the management of Nonparty Company or exercise shareholder rights at a general meeting of shareholders, etc., and there was no fact that the Plaintiffs received dividends or received wages as a shareholder as a director or auditor. Therefore, the Plaintiffs are merely a nominal shareholder, not a beneficial shareholder of Nonparty Company, and thus, the instant dispositions should be revoked on a different premise.

B. Relevant statutes

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

C. Determination

Article 39 subparag. 2 of the Framework Act on National Taxes provides that “A shareholder or one limited partner and a person prescribed by Presidential Decree among his/her related parties, whose total amount of stocks held or investments exceeds 50/100 of the total number of outstanding stocks or investments of the relevant corporation and who actually exercise rights thereto,” shall be an oligopolistic shareholder liable for secondary tax payment. The foregoing oligopolistic shareholder does not necessarily have to have actual exercise shareholder rights, but is adequate if he/she is in a position to exercise shareholder rights with respect to the stocks held as of the date of establishment of tax liability (see Supreme Court Decision 2001Du5354, Jul. 8, 2003). The tax authority may prove the ownership of stocks corresponding to an oligopolistic shareholder based on the data, such as a shareholder registry, a detailed statement of stock transfer or corporate register, etc. In cases where a shareholder appears to be a single shareholder in light of the above data, the actual shareholder cannot be deemed to fall under the shareholder solely under the name of the relevant corporation, or where it is registered under a name other than the real shareholder’s name.

According to the background of the above disposition, the plaintiffs were registered as holding shares of the non-party company in excess of 50/100 as well as KimCC in the statement of changes in shares of the non-party company during the taxable period of this case, and the plaintiffs were listed as directors or auditors in the corporate register of the non-party company during or before the taxable period of this case. Thus, if the plaintiffs are merely nominal shareholders, unlike the above mentioned contents, such circumstance should be proved by the plaintiffs. However, it is insufficient to recognize the plaintiffs' assertion by following the statement of changes in shares, etc. as mentioned above, and there is no other evidence to acknowledge it (the circumstance that the non-party company was in exclusive charge of the existence of occupation or management of the non-party company, etc.).

Therefore, the disposition of this case is legitimate, and the plaintiffs' assertion disputing this is without merit.

4. Conclusion

Therefore, among the plaintiffs' lawsuits in this case, the part of the plaintiffs' request for revocation of the imposition of additional charges as stated in paragraphs 1 and 2 of the attached list and the corporate tax (including additional taxes) as stated in paragraph 1 of the attached list is unlawful and dismissed, and each remaining claim of the plaintiffs is dismissed as it is without merit. It is so decided