Whether an investor's secondary liability for tax payment is appropriate (defensive dismissal)

When it is recognized that there is no real exercise of the authority of the shareholder registry or director, etc. prepared voluntarily without the consent of the person concerned, the secondary tax liability of the investor is not imposed.

Article 39 (Secondary Liability to Pay Taxes by Investor)

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

The records of this case and the judgment of the court below and the grounds of appeal were examined. However, the grounds of appeal by the appellant are not included in the grounds provided for in each subparagraph of Article 4(1) of the Act on Special Cases Concerning the Procedure for Appeal, and the appeal is dismissed pursuant to Article 5 of the same Act. It is so decided as per Disposition by the assent

Daejeon High Court 2006Nu2358 ( July 25, 2007)

1. Revocation of a judgment of the first instance;

2. The Defendant’s disposition of imposition of value-added tax of KRW 40,821,950 on March 18, 2005 against the Plaintiff on December 12, 2004, of KRW 349,242,140 on December 204, of occasional traffic tax of KRW 112,213,120 on December 2004, of KRW 928,310 on the interim prepayment corporate tax of KRW 658,680 on the interim prepayment corporation of KRW 204 is revoked.

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

The same shall apply to the order.

1. Details of the disposition;

A.OOOO (hereinafter referred to as "OOOO") was registered on June 5, 2003 with the capital of 50 million won, and the location of its head office is 6-22, Jincheon-gun, Jincheon-gun, Chungcheongnam-do, Hancheon-do. Since its opening on October 28, 2003, it was a juristic person that closed its business on March 15, 2005 due to its business depression, 272,146,440 won, 208, 300 won, 308, 407, 208, 2008, 208, 208, 304, 207, 208, 208, 208, 204, 2007, 208, 300, 208, 204, 2004, 2004.

B. The Defendant owned 100% of the shares of OOO (Plaintiff 15%, 70%, 15%, 15%, and 15%, and OOOO on the ground that the Plaintiff’s aforementioned delinquent taxes of OOO were the secondary taxpayers under Article 39 of the Framework Act on National Taxes (amended by Act No. 7930, Apr. 28, 2006; hereinafter “the Framework Act on National Taxes”) on March 18, 2005 (i.e., 15%), 40, 821, 90, 2050, 208, 205, 208, 304, 205, 308, 205, 305, 201, 308, 205, 204, 301, 205, 204, 2014, 2014).

C. On May 10, 2005, the Plaintiff appealed and requested an examination to the Commissioner of the National Tax Service on May 10, 2005, but on July 19, 2005, when the above request for examination was dismissed, the Plaintiff filed the instant lawsuit on October 20, 2005.

Facts that there is no dispute between Gap 1 and 3. The purport of the whole pleadings is as follows.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) The fact that the Plaintiff actually established and operated the OO is the OO, and the Plaintiff was a director of the OOO only in the form of lending its title to the nominal representative director upon the request of the KimO, who was not the nominal representative director, and did not have acquired the shares of the OOO. Nevertheless, since KimO voluntarily listed the Plaintiff in the register of shareholders of the OOOO as a shareholder, the Plaintiff is merely a shareholder in the form of the OOOOO. Therefore, the instant disposition imposing secondary tax liability on the Plaintiff by deeming the Plaintiff as an oligopolistic shareholder of the OOO as the Plaintiff’s oligopolistic shareholder is unlawful.

(2) Since OOO only entrusted production of OO pursuant to the production consignment agreement concluded between △△△△△△ or △△ Energy Co., Ltd., the instant national tax in arrears must be imposed on △△△△△△ or △△ Energy Co., Ltd. Therefore, OOO did not have a duty to pay the instant delinquent national tax, and thus, the instant disposition imposing secondary tax on the Plaintiff on the ground that OOO was delinquent was unlawful.

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

The instant disposition is based on the premise that the Plaintiff is an oligopolistic shareholder as prescribed by Article 39(1)2 and (2) of the Framework Act on National Taxes. As such, whether the Plaintiff constitutes an oligopolistic shareholder of the OOO.

Whether it falls under an oligopolistic shareholder under Article 39(1)2 of the Framework Act on National Taxes 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 shall not be determined that it is not an oligopolistic shareholder. The fact of ownership of stocks shall not be determined by the taxation authority alone, and if it is proved by the data, such as the register of stockholders, the statement of stock transfer status, or the register of corporate register, etc., and even if it appears to be a single shareholder in light of consolation money, if there are circumstances such as misappropriation of the name of the shareholder or registration in the name other than the name of the real owner, the actual owner cannot be deemed to fall under the shareholder, but it shall not be deemed to fall under the shareholder only under the name of the shareholder, which is alleged to be a shareholder

In this case, according to the evidence Nos. 4 and 5, the ratio of the OOO as of the end of 2003 business year on the register of shareholders of the OOOO is recognized as the fact that the ratio of the OOOO was 70%, the plaintiff 15%, and the △△△△△△△△△△△△ 15%.

However, considering the overall purport of the pleadings in Gap evidence 1, Gap evidence 8, Gap evidence 9, Eul evidence 11 through 13 (including each number), and the testimony of the party witness KimO, the OOO was established on June 5, 2003 with 10,000 shares. According to the shareholder registry of the same dateOOOO, 4,000 shares, 3,000 shares were owned by OOO and O, respectively. The KimO was the only director of the OOOOO, while the former and 100 shares were 3,00 shares, OO was the 15,00 shares owned by the plaintiff, OO was registered as the director of the OO on August 18, 200, O of 10, 1000 shares owned by the plaintiff and 70,000 shares issued by OO of 1,300,300,00 shares issued by OOO of the same date.

According to the above facts, 15% of the shares of OOO are owned by the plaintiff in the register of shareholders, but it is reasonable to view that KimO voluntarily prepared by the plaintiff without the plaintiff's consent. Thus, the plaintiff cannot be deemed to be an oligopolistic shareholder under Article 39 (1) 2 of the Framework Act on National Taxes. Therefore, the disposition of this case based on the premise that the plaintiff is an oligopolistic shareholder is illegal without any need to determine the remaining arguments of the plaintiff.

3. Conclusion

Therefore, the plaintiff's claim seeking the revocation of the disposition of this case shall be accepted as a series of reasons. Since the judgment of the second instance is unfair with different conclusions, the plaintiff's appeal shall be accepted and the judgment of the first instance shall be revoked and the plaintiff's claim shall be accepted as per Disposition.

public official law, order of law,

(1) Framework Act on National Taxes (amended by Act No. 7930 of April 28, 2006)

Article 21 (Establishment Date of Liability for Tax Payment)

(1) A liability to pay national taxes shall accrue at the following times:

7. For value-added taxes, when a taxable period is terminated: Provided, That for imported goods, when an import declaration is filed with the head of customhouse;

8. In cases of the special consumption tax, liquor tax, or traffic tax, when taxable goods are taken out of the manufacturing place, sold at the selling place, or admitted to the taxable place or entertainment and eating at the taxable entertainment place: Provided, That in cases of imported goods, when an import declaration is

10-3. For an education tax:

(a) For an education tax imposed on the national tax, when the national tax liability comes into existence;

Article 39 (Secondary Liability to Pay Taxes by Investors)

(1) Where the property of a corporation (excluding a corporation which has listed stocks on the securities market under Article 2 (1) of the Korea Securities and Futures Exchange Act) is insufficient to cover the national taxes, additional dues, and disposition fees for arrears that are imposed on or to be paid by such corporation, any of the following persons as of the date on which the liability to pay national taxes is established shall assume secondary tax liability for such shortage: Provided, That in the case of oligopolistic stockholders under subparagraph 2, the limit of the amount calculated by multiplying the amount obtained by dividing the shortage by the total number of stocks issued (excluding non-voting stocks; hereafter the same shall apply in this Article) or total amount of investment of such corporation by the number of oligopolistic stockholders owned (excluding non-voting stocks; hereafter the same shall apply in this Article) or investment amount (in

1. General partners;

2. An oligopolistic stockholder who falls under any of the following items:

(a) A person who exercises a substantial right over the stocks or investment shares in excess of 51/100 of the total issued stocks or total investments of the relevant corporation;

(b) An honorary chairperson, president, vice president, senior executive director, executive director, director, or any other person who actually controls the operation of the corporation, notwithstanding the title thereof;

(c) The spouse (including the person in de facto marital relations) of the persons under items (a) and (b) and the lineal ascendants and descendants sharing their living

(2) For the purpose of paragraph (1) 2, the term “excess stockholder” means a person who is a relative or has other special relations with a stockholder or partner with limited liability as prescribed by the Presidential Decree, and the total sum of stocks owned or investment is 51/100 or more of the total number of stocks issued or investment of the juristic person

【Enforcement Decree of Framework Act on National Taxes

The term “relatives and other persons having special relations as prescribed by the Presidential Decree” in Article 39 (2) of the Act means those who fall under any of the following subparagraphs: Provided, That in case where a stockholder or a partner with limited liability is a woman, he shall be subject to the relationship with her husband except in the cases of subparagraphs 9 through 13:

1. Paternal relatives within the sixth degree and the wife of any paternal blood relationship within the fourth degree;