Revocation of the designation of the secondary tax obligor;

Since the ownership of the shares of the non-party corporation as of the date when the tax liability is established cannot be deemed to have been transferred to the plaintiff, the designation of the secondary tax obligor is unlawful

Article 39 (Secondary Liability for Tax Payment of Contributors)

1. Revocation of a judgment of the first instance;

2. The Defendant’s disposition of imposition of KRW 188,635,860 ( corporate tax 136,522,280, value-added tax 132,202, and value-added tax 52,113,580 for the year 2003 on October 15, 2004) shall be revoked.

3. The total costs of the lawsuit shall be borne by the defendant.

It is the same as the order (the petition and the petition of appeal are written as seeking the cancellation of the disposition of October 19, 2004, but it appears to be the clerical error in the above "O. 19, October 15, 2004," "O. 19, October 2004".

1. Details of the disposition;

A. ○○○○○○○○○ (hereinafter “instant delinquent corporation”) for the purpose of the installation of telecommunications equipment and facilities, wholesale and retail business, etc. was 57,429,140 won of value-added tax (including this tax and additional dues; hereinafter the same shall apply) on an occasional basis in March 2004 (the date of establishing the tax liability on December 31, 2002), 135,796,370 won of corporate tax on an occasional basis in July 2004 (the date of establishing the tax liability on December 31, 2002), 8,46,830 won of corporate tax on an occasional basis in March 204 (the date of establishing the tax liability on December 31, 2002), 208, 30,46,830 won of value-added tax on an occasional basis in March 31, 2003 (the date of establishing the tax liability on December 31, 2003);

B. Accordingly, at the time of December 31, 2002, the Defendant, among the above delinquent tax amount, became an oligopolistic shareholder of the pertinent delinquent corporation at the time of the establishment of tax liability, was deemed to have practically controlled the management of the instant delinquent corporation while exercising the shareholder rights and representative rights of the instant delinquent corporation since the Plaintiff entered into a contract for transfer/acquisition with YO around September 14, 2002, on the part of YO and YOOO. However, on October 15, 2004, the Defendant: (a) designated the Plaintiff as the secondary delinquent taxpayer; and (b) paid and notified the Plaintiff the said delinquent tax amount.

C. On December 31, 2002, the Plaintiff dissatisfied with the notice of payment of corporate tax of 136,522,280 (excluding additional dues) and value-added tax of 52,113,580 (excluding additional dues) and the portion of KRW 188,635,860 (hereinafter “tax amount in arrears in which the dispute arises”) and filed a request with the National Tax Service for a decision of dismissal on April 14, 2005, but filed the instant lawsuit on July 8, 2005.

(In fact that there is no dispute, Gap evidence 1-2, Gap evidence 2-4, the purport of the whole pleadings and arguments.

2. Whether the disposition of this case is legitimate

A. Summary of the plaintiff's assertion

At around February 13, 2003, the Plaintiff started to serve as the representative director of the corporation in arrears in the instant case, and around December 31, 2002, the date when the liability to pay the disputed tax amount was established, the Plaintiff was not an oligopolistic stockholder of the instant delinquent corporation, and did not participate in the management of the instant delinquent corporation at all, such as not having exercised substantial power of representation. Therefore, the Plaintiff does not constitute the secondary taxpayer under Article 39(1)2 of the Framework Act on National Taxes.

B. Judgment on the Plaintiff’s assertion

(i)a fact;

(A) The instant delinquent corporation is listed as the head of a non-small and medium enterprise with the capital of KRW 170,00,000 in capital stock, the total number of issued and outstanding shares on the register of shareholders with KRW 34,00 in total number of 34,00 in total number of issued and outstanding shares, and the shares and equity shares on the register of shareholders with KRW 28,00 in business year 202 (82.35%) Y○○○ 28,000 (14.71%) 5,000 (2.94%) and 1,000 shares (2.94%) for the business year 203, Plaintiff 17,000 shares (50%), Kim○○, ○○○○, and Kim○○ 12%) and the share certificates were not issued.

(B) On September 14, 2002, YO entered into a contract for the transfer or acquisition of the instant delinquent corporation with the Plaintiff.

1. (Subject Matter and Scope of Transfer) Yellow ○○ shall transfer to the Plaintiff all the target facilities and equipment of the juristic person in arrears of this case and all the ancillary facilities. The property to be transferred shall be recorded separately in the list;

2. (Transfer Price) The Plaintiff promises to pay 320 million won to Yellow ○○ as the price for the acquisition by the above company. The down payment of 120 million won (payment date September 14, 2002) and the intermediate payment of 100 million won [1.30 on January 30, 2003 (the clerical error in the payment date as of September 30, 2003)] and the remainder of 100 million won (payment date as of September 30, 2003).

3. (Concurrent Performance Matters) The Plaintiff shall pay a down payment or deposit a down payment of 120 million won to the account of Y○○ prior to the execution of the contract ( October 11, 2002) on the date of the authentication of the principal contract, and at the same time, Y○ shall deliver to the Plaintiff a notarized written resolution of the general meeting of shareholders that the Plaintiff consented to the transfer of the company by all of the shareholders, and a list of the total amount of shareholders. At the same time, the Plaintiff shall also deliver to Y○○ a notarized document where the resolution of the general meeting of shareholders consenting to the transfer of the

(1) Upon signing and sealing a contract, the Plaintiff shall have all representative positions of the instant delinquent corporation at the same time as paying the down payment.

(2) The Minister of Strategy and Finance shall commemorate ○○ from among the acquisition cost to outside directors of the corporation in arrears in this case before he/she pays the remainder, and shall provide a certain amount monthly with subsidies appropriate therefor.

4. (Transfer of Payment and Trade Name Registration, etc.) The Plaintiff shall pay the intermediate payment to ○○ on January 30, 2003. At the same time, the Plaintiff succeeds to the representative director’s position.

5. (Date of Confirmation of Succession to Status as Manager) The Plaintiff becomes a manager of the instant business as of the date stipulated in No. 4. Thus, the effect of the business after the same shall be reverted to the Plaintiff and the cooperation division between the two parties before the payment of the remaining amount is made shall be borne by the delinquent corporation.

(C) The Plaintiff paid 120,00,000 won in total, from September 7, 2002, and 65,000,000 won in the intermediate payment on September 13, 2002, and paid 100,000,000 won as part payment on February 12, 2003, and was registered as the representative director on February 13, 2003 (10,000 won in the form of a notarial deed of money loan contract between the Plaintiff and Yellow ○○ on February 14, 2003).

(D) On February 20, 2003, on March 10, 2003, the Yellow ○○○○○○○ transferred part of the shares of the instant delinquent corporation to the Defendant.

(E) The YO alleged that he was a shareholder by February 13, 2003 when filing a lawsuit against the instant delinquent corporation. However, when the Defendant was designated as an oligopolistic shareholder with the secondary tax liability, the disposition of imposition pursuant to the designation of the secondary tax liability was revoked on September 14, 2002 by asserting that all the shares of the instant delinquent corporation were transferred to the Plaintiff around September 14, 2002.

[Reasons for Recognition: Facts without dispute, Gap evidence 2, Gap evidence 11-1 through 17, 19, 20, Gap evidence 12-1, Eul evidence 1-1, and the purport of the whole pleadings

(2) Legislative intent and amendment history of Article 39 of the Framework Act on National Taxes

Article 39 of the Framework Act on National Taxes intends to realize the principle of substantial taxation as a principle for the imposition of national taxes and the application of tax laws. The secondary tax liability of oligopolistic shareholders is formally intended to realize the principle of substantial taxation. However, even though property belongs to a third party, a third party having a special relationship not to lose fairness even if the same liability is recognized as the principal taxpayer, thereby denying the formal ownership of such property, thereby ensuring reasonableness and feasibility in its content or equity in taxation. Meanwhile, as a system to achieve the public interest of securing tax collection, it is a system to realize the public interest of securing the ownership of oligopolistic shareholders, and uniformly recognizes the unlimited tax liability of all oligopolistic shareholders to justify the imposition of secondary tax liability, such as the degree of ownership of stocks owned by oligopolistic shareholders and the actual control over the corporation’s management, the guarantee of equal taxation or property rights against oligopolistic shareholders is excessively emphasizing only the securing of tax collection, infringing on the substantial property right, and imposing excessive discrimination between oligopolistic shareholders, and thus, it is necessary to establish the scope of the oligopolistic shareholder’s tax liability in light of the principle of equality between oligopolistic shareholders and the principle of no taxation without law.

Article 39 of the Framework Act on National Taxes concerning the scope of oligopolistic shareholders liable for secondary tax liability provides that, at the time of the enactment of the Act, one stockholder or one partner with limited liability and his relative or other person with special relationship with him as prescribed by the Presidential Decree shall be liable for secondary tax liability if their total amount of stocks or investment is not less than 51/100 of the total amount of issued and outstanding stocks or total amount of investment in the juristic person concerned. The scope of secondary tax liability has been gradually limited to the scope of oligopolistic shareholders whose total amount of stocks or investment is not less than 51/100 of the total amount of stocks issued or total amount of investment in the juristic person concerned from among oligopolistic shareholders whose total amount of stocks or investment is not less than 51/100 of the total amount of stocks issued or total amount of investment in the juristic person concerned, or a person who actually controls the management of the juristic person has been re-amended by Act No. 5579 of Dec. 28, 199>

(3) Requirements for oligopolistic shareholders with secondary tax liability

In light of the legislative purport, history, etc. of the above Article 39 of the Framework Act on National Taxes, it is reasonable to interpret the secondary tax liability as an oligopolistic shareholder only if the total number of stocks owned is a formal oligopolistic shareholder whose total number is at least 51/100 of the total number of stocks issued by the relevant corporation and the substantive standards that actually exercise rights to, or control the management of, the relevant corporation. Whether it constitutes an oligopolistic shareholder under Article 39(1)2 of the Framework Act on National Taxes shall be determined based on whether it is a member of a group of stocks owned by the majority. Further, even if it does not participate in the management of the company, it shall not be determined that it is an oligopolistic shareholder. However, the tax authority must prove the fact that the ownership of stocks is an oligopolistic shareholder. A person who intends to be exempted from liability as the secondary taxpayer is not a de facto shareholder but a secondary shareholder, and it shall not be proven that the secondary taxpayer is not a shareholder (see Supreme Court Decision 200Nu71379, Jul. 19, 2019).

Furthermore, in a case where there is a dispute as to the scope of oligopolistic shareholders liable for secondary tax liability due to the unclear time of stock transfer as in this case, it is reasonable to determine whether it falls under the oligopolistic shareholders under Article 39(2) of the Framework Act on National Taxes, not the substantial aspect of exercising the right to stocks of the relevant corporation or de facto controlling the management of the relevant corporation, but the possession of stocks of the relevant corporation under civil law. The transfer of stocks prior to the issuance of stock certificates must take effect only by the declaration of intention of the relevant party, but where there is a dispute as to the time of stock transfer, the time of stock transfer shall be determined by reasonably interpreting the agreement between the parties by taking into account the process of conclusion of the agreement, its contents, and the time of transfer (Article 162 of the Enforcement Decree of the Income Tax Act,

(4) Application of this case

The above facts and the evidence revealed as follows. The shareholder registry at the time of December 31, 2002 became an oligopolistic shareholder of the corporation in arrears. The shareholder registry at the time of the establishment of the tax liability was changed from February 2003 after the intermediate payment was received (the Plaintiff’s share in the corporation in arrears was less than 50% in business year in 2003). The Plaintiff’s share in the corporation in arrears at the time of transfer and acquisition of the corporation in arrears was 120 million won with the total transfer price of 37.5% with the 37.5% higher than the total transfer price of 37.5 million won, but it cannot be viewed that the Plaintiff did not claim that the shares of the corporation in arrears were transferred to the Plaintiff at the time of transfer of the corporation in arrears from the point of view of the fact that the Plaintiff did not claim that the shares of the corporation in arrears were transferred to the Plaintiff at the time of transfer of the 200 million won stock in arrears and the 37.5% stock of the corporation in this case.

3. Conclusion

Therefore, the plaintiff's claim shall be accepted on the grounds of its reasoning, and the judgment of the court of first instance which has different conclusions is unfair, so it is revoked, and it is so decided as per Disposition with the plaintiff's claim accepted.