Examination- Other-2014-0041

The designation of the secondary tax obligor for the representative who is merely a shareholder is illegal.

The designation of the person liable for secondary tax payment is illegal for the representative who is merely a sole shareholder in the form of lending only the name.

Article 39 of the Framework Act on National Taxes

2014Guhap11779

AA

Head of the North Mine District Tax Office

September 10, 2015

October 12, 2015

1. Of the instant lawsuit, the part that the Defendant sought revocation of the designation of the secondary taxpayer against the Plaintiff on September 19, 2014 shall be dismissed.

2. The Defendant’s disposition of imposition of each value-added tax and corporate tax on September 19, 2014 in the separate sheet No. 1 column for the Plaintiff shall be revoked.

3. One-fourth of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

Paragraph 2 of Article 2 of the Gu Office's establishment and the defendant's designation of the secondary taxpayer against the plaintiff on September 19, 2014 shall be revoked.

1. Basic facts

A. On March 31, 2008, 2000 000 100 100 100 200 200 20 200 20 200 29 28,148,840 20 20, 2009 34,764,80 200 20 200 34,764,80 209 20 200 200 200 200 200 200 27, 205, 580 2010 27, 205, 2010 27, 10 27, 255, 209 256 4, 250 256 2, 205 2.

B. Disposition on default of the non-party company and the defendant's plaintiff

The number of shares issued by the non-party company is 1,000 shares, and the plaintiff was registered as holding 600 shares and DD 400 shares in the list of changes in the shares issued by the non-party company, and the property of the non-party company is insufficient to be appropriated for the national tax amount in the above paragraph (a) as the property of the non-party company. On September 19, 2014, the defendant designated the plaintiff as the oligopolistic shareholder of the non-party company and imposed the second taxpayer (hereinafter referred to as "the notice of the designation of the taxpayer of this case"), and the plaintiff imposed the non-party company's imposition of each value-added tax and the corporate tax in attached Table 1, which correspond to the plaintiff's share ratio among the national tax

(c) Procedures of the previous trial;

On October 24, 2014, the Plaintiff appealed to the Tax Tribunal, but the Tax Tribunal dismissed the said request on January 20, 2015.

[Ground of recognition] Facts without dispute, Gap evidence 1, 2 through 6, Eul evidence 1 to 3 (including each number), the purport of the whole pleadings

2. The plaintiff's assertion and relevant Acts and subordinate statutes;

A. The plaintiff's assertion

Upon FF’s request, the Plaintiff is merely nominal trust with 600 shares of the non-party company owned by FF, and is merely registered under its name as a representative director, and thus is not an oligopolistic shareholder of the non-party company. Therefore, the instant notice of designation of the taxpayer and the instant disposition of imposition should be revoked as it is unlawful

(b) Related statutes;

It is as shown in the attached Table related statutes.

3. Determination prior to the merits

We examine ex officio.

The secondary tax liability under Article 39 of the Framework Act on National Taxes is abstractly established by the occurrence of a fact that meets the requirements, such as the failure of the principal taxpayer, and specifically decided by the notice of payment. Since the secondary tax liability is not determined by itself, the designation disposition of the secondary taxpayer is not yet finalized, such designation disposition cannot be deemed an administrative disposition that is the object of appeal litigation (see Supreme Court Decision 95Nu6632, Sept. 15, 1995). Therefore, the instant notice of the designation of the taxpayer is not a disposition that is the object of appeal litigation, and thus, the part of the instant lawsuit seeking the revocation of

4. Whether the instant disposition is lawful

A. Relevant legal principles

Whether a person is an oligopolistic shareholder under Article 39(1)2 of the former Framework Act on National Taxes (amended by Act No. 11124, Dec. 31, 201) shall be determined by whether the person is a member of a majority share ownership group. Specifically, even if there is no fact involved in the management of the company, it cannot be determined that the person is not an oligopolistic shareholder. The fact of ownership of shares is proven by the tax authority through the data such as the register of shareholders, the statement of stock transfer status, or the register of corporate register, etc.; Provided, That even if a single shareholder appears to be a single shareholder in light of the above data, if there are circumstances, such circumstance is that the actual shareholder is stolen by the name of the shareholder or that only the nominal shareholder was lent to the real shareholder, it cannot be deemed that the nominal shareholder is a shareholder, but this is the nominal shareholder who is not a shareholder (see, e.g., Supreme Court Decisions 2003Du1615, Jul. 9, 2004; 2009Du75788, Feb.

(b) Fact of recognition;

In addition to the facts without dispute, Gap evidence Nos. 5, 7, Eul evidence Nos. 3 through 7, the result of this court's order to submit documents to the Korea Federation of Banks, and the purport of the whole pleadings, the following facts may be acknowledged, and there is no counter-proof otherwise.

1) 00 0구 000로 829에 있는 유한회사 QQQQ(이하 'QQQQ'이라 한다)은 써비스 소사장제, 도・소매업, 기타 도급업을 사업목적으로 설립된 회사이고, 그 대표이사는 FFF의 아버지인 GGG이다. 소외 회사의 대표이사로 2008. 3. 31.부터 2009. 11. 24.까지는 원고가 재직하였으며, 2009. 11. 24.부터 현재까지는 FFF이 재직하고 있다.

00 000 00000번로 113에 있는 유한회사 SSSS(이하 'SSSS'이라 한다)은 전자부품 제조업 등을 사업목적으로 설립된 회사이고, 그 대표이사는 FFF의 동생인 DDD이다. 2) 원고는 QQQQ 소속으로 2007. 3.부터 2008. 6.까지 월 약 71,000원 가량을, 소외 회사 소속으로 2008. 7.부터 2009. 6.까지는 월 90,000원을, 2009. 7.부터 2010. 4.까지는 월 79,200원을, SSSS 소속으로 2010. 5.부터 2011. 3.까지 월 81,000원을 국민연금보험료로 납부하였다.

3) On the other hand, on April 20, 2008, the Defendant conducted on-site verification of business registration with respect to the non-party company. At the time, the Plaintiff prepared and issued a corporate representative confirmation document stating that “I will establish the non-party company and apply for the registration of business as a corporation by establishing the non-party company, have practical authority to represent the company and exercise de facto rights and influence as a representative in operating the business. I confirm that I will be responsible for the business of the non-party corporation and its related tax activities as a real representative (hereinafter “instant confirmation document”).”

4) The Plaintiff appealed FF to the effect that “the Plaintiff, by deceiving the Plaintiff, had the Plaintiff enter it as a shareholder and representative director in the name of the non-party company, and caused the Plaintiff to act on behalf of the Plaintiff.” The Prosecutor of the 00 District Prosecutors’ Office, who investigated the instant accusation case, prosecuted the non-prosecution on the ground that “the FF allowed the Plaintiff to establish a non-party company on April 9, 2015 by lending the Plaintiff’s name, but there is insufficient evidence to acknowledge fraud in light of the fact that the FF knew that it was jointly and severally liable for the amount in arrears, and that there is insufficient evidence to acknowledge fraud in light of the fact that it changed the representative director

5) At least from February 27, 2004 to September 30, 201, FF had been in the so-called “credit unpaid amount” due to overdue payment of credit card payment or principal and interest of loan from February 27, 2004.

C. Determination

In full view of the evidence presented above and the following circumstances revealed in the facts acknowledged as above, since FF borrowed the Plaintiff’s name and acquired the shares of the non-party company, the Plaintiff is not the actual shareholder of the non-party company. Therefore, the Plaintiff’s assertion is with merit.

Therefore, even if the Plaintiff is not an oligopolistic shareholder of the non-party company, the disposition of this case shall be revoked as it reports the Plaintiff to the oligopolistic shareholder of the non-party company.

1) The FF stated in this court that “The shares of the non-party company were acquired by lending the name of the plaintiff and establishing the non-party company. The non-party company was operated by itself, and the plaintiff was merely a listed director in the name of the non-party company.”

위와 같은 FFF의 진술은 ① QQQQ과 SSSS의 대표이사가 FFF의 가족인 점에 비추어 FFF이 QQ기업과 SS기업을 실질적으로 운영한 것으로 보이는 점, ② QQ기업과 소외 회사의 설립목적, 소재지가 동일한 점, ③ FFF은 소외회사가 설립될 당시 '신용불량' 상태로 채권자의 강제집행 등을 피하기 위하여 소외 회사의 주식을 명의신탁할 필요가 있었던 것으로 보이는 점, ④ FFF은 이 사건 주식의 명의신탁 사실이 밝혀지는 경우 제2차 납세의무자로 지정되어 연대채무를 부담하게되므로 허위의 진술을 꾸며낼 아무런 동기가 없는 점을 종합하면 그 신빙성이 인정된다.

2) 원고는 소외 회사에서 대표이사로 재직한 기간(2008. 3. 31.부터 2009. 11. 24.까지) 중 일부 기간 동안(2008. 3.부터 2008. 6.까지) 소외 회사가 아닌 QQ기업으로부터 급여를 지급받은 점, 앞에서 본 국민연금보험료의 납부액에 비추어 소외 회사의 대표이사로 등재되었는지 여부를 불문하고 소외 회사와 QQ기업 및 SS기업에서 지급받은 급여는 크게 다르지 않은 것으로 보이는 점을 종합하면, 원고가 실질적으로 소외 회사의 대표이사로 근무하였다고 보기에 부족하고, 오히려 소외 회사와 QQ기업 및 SS기업을 실질적으로 운영하는 FFF의 지시에 따라 위 각 회사로 소속을 변경하면서 직원으로 근무한 것으로 보인다.

3) There is no evidence to acknowledge that the Plaintiff received dividends from the non-party company or actually exercised the sovereignty of the non-party company.

4) Since the instant confirmation document was written immediately after the establishment of the non-party company and was concluded between the Plaintiff and FF pursuant to the title trust agreement between the Plaintiff and FF, it is insufficient to recognize that the Plaintiff was the actual shareholder or the representative director of the non-party company.

5. Conclusion

Therefore, the part of the plaintiff's claim for revocation of the notice of designation of the taxpayer of this case among the lawsuit of this case is unlawful, and thus, the claim for revocation of the disposition of this case is justified, and it is so decided as per Disposition by the assent