Review Division 2008-0232 (Law No. 23, 2009)

The legitimacy of the assertion that the designation of the secondary tax liability is improper by transferring shares at the time of establishment of the tax liability.

Recognizing the fact that the certificate of stock transfer and takeover is affixed to the certificate of stock transfer and takeover, considering the fact that the certificate of stock transfer and takeover appears to have not been falsely prepared, it cannot be viewed as an oligopolistic shareholder at the

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

1. On June 17, 2008, the Defendant: (a) revoked the disposition imposing value-added tax, wage and salary income tax, and business income tax on the attached Form No. 1, which the Plaintiff designated as the secondary taxpayer of △△△△△△

section 3.

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

It is the same as the disposition.

1. Circumstances of the disposition;

A. The ○○○○○ Co., Ltd. (hereinafter referred to as “non-party company”) is a stock company established on September 7, 2004 with protea and events, marketing, agency business, etc. as its objective business, and the total number of issued and outstanding shares is KRW 20,000,000, the total amount of capital, and KRW 100,000,000, and the composition of shareholders listed in the detailed statement on the state of stock fluctuation by December 31, 2006 are as follows.

B. On the other hand, on August 16, 2007, the Plaintiff reported the securities transaction tax to the Defendant that “the Plaintiff transferred the shares of 6,000 shares, 3,000 shares, 2,000 shares, and 2,00 shares, respectively, to SongA, Lee○, and Lee Il-young on July 31, 2007 and August 10, 2007,” and accordingly, the shareholder composition stated in the statement of changes in shares is as follows.

C. Meanwhile, as the non-party company failed to pay the value-added tax, earned income tax, and business income tax stated in the attached list of the national tax in arrears, the defendant judged that the non-party company, the main taxpayer, was not capable of paying the above physical tax due to its own property, and as of the date the principal tax liability is established, the plaintiff constitutes the oligopolistic shareholder (95% of the investment shares) of the non-party company under Article 39 (1) 2 of the Framework Act on National Taxes (amended by Act No. 9131 of September 26, 2008). As of June 17, 2008, the non-party company designated the plaintiff as the second taxpayer of the non-party company's company, and imposed and notified the plaintiff the value-added tax, earned income tax, and business income tax in the attached list of the national tax in arrears within the limit of 95% of the Plaintiff's shares

D. The Plaintiff filed a request for review on December 24, 2008 after filing a petition for grievance on September 4, 2008 with respect to the instant disposition, but was dismissed on March 23, 2009.

[Reasons for Recognition: Facts without dispute; Gap evidence 1-7, Gap evidence 7, 9, Eul evidence 1-1-4, Eul evidence 2-1 through 7, the purport of whole pleadings]

2. Whether the dispositions of the instant case are legal.

A. The plaintiff's principal

(i)the first proposal;

On April 9, 2005, the Plaintiff had already transferred 55% of the total number of outstanding shares of Nonparty Company to hold only 40% shares at the time of the establishment of the principal tax liability, and thus, the instant disposition that reported otherwise is unlawful even though it is not an oligopolistic shareholder.

(ii)the second place;

Since the secondary tax liability is substituted by the original tax liability, it is limited to the shortage of the tax amount to be calculated even if the disposition on default is made against the original taxpayer, and the non-party company holds the bonds that meet the national tax in arrears on the ASEAN Co., Ltd., and thus, it is necessary to execute the above bonds and appropriate it for the national tax in arrears. However, the defendant issued the disposition in this case without such a fixed number of tax liability (On the other hand, the plaintiff asserted that the tax amount was calculated by applying the error of the date on which the main tax liability was established

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

1) Article 39(2) of the Framework Act on National Taxes provides that "a person who is a relative or has other special relations with a stockholder or partner with limited liability and whose total amount of stocks or investment is not less than 51/100 of the total number of stocks issued or total amount of investment made by the juristic person in question."

In such a case, whether it is an oligopolistic shareholder shall be determined by whether it is a member of a group of stocks owned by the majority. Specifically, even if there is no fact involved in the management of the company, it cannot be determined that it is not an oligopolistic shareholder. The fact of ownership of stocks should be proven by the tax authority through the data, such as the register of shareholders, the statement of stock movement, or the register of corporate register, etc. However, even if it appears to be a single shareholder in light of the above data, if there are circumstances, such as where the name of the shareholder was stolen or the registration was made in a name other than the name of the actual owner, it cannot be deemed to be a shareholder only under such name (see Supreme Court Decision 2003Du161

2) 살피건대, 갑제2호증의 1 내지 4, 갑제3, 4, 9호증의 각 기재에 변론 전체의 취지를 종합하면, 송★★이 2005. 4. 8. 소외 회사의 대표이사로, 이○○이 같은 날 감사로 각 취임한 사실, 원고는 2005. 4. 9. 송★★에게 소외 회사의 주식 5,000주, 김☆☆에게 주식 2,000주, 이○○에게 주식 2,000주, 이●●에게 주식 2,000주를 각 무상 양도하였고, 김◎◎는 같은 날 송★★에게 소외 회사의 주식 1,000주를 무상 양도한 사실, 위 양도 당시 양수인들은 소외 회사에서 퇴사할 경우 양수받은 주식 일체를 소외 회사에게 반환하도록 약정한 사실을 인정할 수 있고 이에 반하는 을제2호증의 1 내지 7의 각 기재는 믿지 아니하며 달리 반증이 없다[결국 이는 서로 양립되지 아니하는 취지의 처분문서 중 어느 문서를 신빙할 것인가의 문제로서, 갑제2호증의 1, 2, 3, 4의 각 기재에 의하면 김☆☆, 이○○, 이●●은 2005. 4. 8. 인감증명서를 발급받은 사실 및 위 사람들의 인장이 2005. 4. 9.자 주식양도양수계약서에 날인되어 있는 사실을 인정할 수 있어 결국 위와 같은 내용의 주식양도양수계약서가 허위로 소급 작성되지 아니하고 위 당시에 작성되었음은 분명해 보이는 점, 갑제3, 8, 9호증, 갑제11호증의 1, 2의 각 기재에 의하면 위 당시 소외 회사의 경영 악화에 따라 양수인들의 경영참여를 조건으로 위 각 주식이 양도되었던 것으로 보이는 점 등에 비추어 보면, 위 주식양도 양수계약서에 기재된 내용대로 주식 양도가 있었음이 인정되고, 이에 반하는 취지의 을제2호증의 2, 4, 5의 각 기재는 증여세 등의 회피를 위하여 허위로 작성된 것으로 보인다).

Therefore, on April 9, 2005, the Plaintiff transferred 11,000 shares of the non-party company to the above persons to hold only shares that reach 40% of the total number of issued shares, and thus, it cannot be deemed that the Plaintiff constitutes an oligopolistic shareholder as of the time when the liability for payment of value-added tax, earned income tax, and business income tax stated in the attached Form.

3) Therefore, the Defendant’s instant disposition that the Plaintiff deemed as an oligopolistic shareholder is unlawful without having to further examine the remainder of the Plaintiff’s claims.

3. Conclusion

If so, the plaintiff's claim is reasonable.