Cho High Court Decision 2009Da2632 ( October 21, 2009)

Secondary Tax Liability of Investors

Whether it is an oligopolistic stockholder shall be sufficient if a majority of the shares are in the position to exercise shareholders' rights with a majority of the shares, and even if there is no fact that the company does not have engaged in the management of the company,

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The judgment of the first instance shall be revoked. The imposition of value-added tax of KRW 47,601,710 against the plaintiff on March 16, 2009 by the defendant shall be revoked.

1. Details of the disposition;

A.CC Motor Vehicle Sales Co., Ltd. (hereinafter “Non-Party Co., Ltd”) is a stock company established on January 11, 1996 with automobile sales business as a target business and its total number of issued stocks is KRW 50,000,000, and the total amount of capital is KRW 50,000,000, and the composition of Non-Party Co., Ltd from around 2002 to 2009 is the following.

"나. 소외 회사가 2007년 제1기 부가가치세 등 총 8건 93,337,000원을 체납하자, 이에 피고는 주된 납세의무자인 소외 회사가 그 소유재산으로 위 체납세액을 납부할 능력이 없다고 판단하고, 주된 납세의무 성립일 기준으로 원고가 국세기본법 제39조 제1항 제2호 소정의 소외 회사의 과점주주(출자지분 51%)에 해당한다고 보아, 2009. 3. 16. 원고를 소외 회사의 제2차 납세의무자로 지정함과 아울러 원고에 대하여 위 체납세액 중 원고의 출자지분 51%를 한도로、 2007년 제1기 부가가치세 등 47,601,710원을 부과ㆍ고지하였다(이하이 사건 처분'이라고 한다).",다. 원고는 이 사건 처분에 대하여 2009. 3. 25. 피고에게 이의신청을 하였으나 같은 해 5. 1. 기각되었고, 원고는 같은 해 6. 25. 조세심판원에 심판청구를 하였으나 같은 해 10. 21. 기각되었다.

[Ground of recognition] Facts without dispute, Gap evidence 1, Gap evidence 8-1 to 8, Gap evidence 15, Gap evidence 17-1, 2, Eul evidence 1-1, 2, 3, Eul evidence 5, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) At the time of incorporation of the non-party company, the Plaintiff leased only 150 shares of 7 promoters at the request of the head of the Dong-in B. The Plaintiff created the Plaintiff as the oligopolistic shareholder of the non-party company by making a change in the name of 2,50 shares of EE’s shares of 2,00 shares, 200 shares of KimD (EE’s shares), 150 shares of 150 shares of EF (EE’s shares), 2,400 shares of 2,50 shares of EF (E’s shares of 2,50 shares of E), 150 shares of EF (EE’s shares of 2,50 shares, 2,400 shares of EF (EA’s shares), the representative director of the non-party company, B, who is the representative director of the non-party company, by misappropriation the Plaintiff’s shares,

(2) After all, the Plaintiff did not know the above circumstances, and there was no fact that the Plaintiff did not exercise the above shareholders' rights or participated in the management of the non-party company due to the attendance at the shareholders' general meeting or the board of directors of the non-party company or the payment of wages, etc. from the non-party company. Thus, the instant disposition based on the premise that it constitutes an oligopolistic shareholder under Article 39

(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 a special relationship with a shareholder or partner with limited liability and whose total amount of stocks held or investments is not less than 51/100 of total number of stocks issued or total amount of investments 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, and even if there is no fact involved in the management of the company, it shall not be determined solely by the fact that it is not an oligopolistic shareholder, and the fact of ownership of stocks shall be proved by 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 the taxation authority stolen the name of the shareholder or registered in the name other than the name of the real owner, it shall not be deemed to be a shareholder only in the name of the shareholder, but it shall be proved by the nominal owner who asserts that he is not a shareholder (see Supreme Court Decision 2003Du1615, Jul. 9, 2004). In addition, it is not necessarily required that the actual exercise of shareholder's right should be exercised, but it shall be deemed sufficient if it is above whether the shareholder can exercise the shareholder's right concerning the stocks held as of the date of the tax liability.

(2) As of June 30, 2007, the date on which the principal liability for tax payment was established in the shareholder investment status of the non-party company in this case, the fact that the plaintiff becomes a 2,550 shareholder of the total number of shares issued by the non-party company 5,000 shares, 51% of the total number of shares issued by the non-party company, as seen earlier, should be proved by the plaintiff that it was stolen by its name or that it was not the actual owner of the shares

The following circumstances, which are acknowledged by the overall purport of the statements and arguments in Gap evidence No. 1, Gap evidence No. 1, Eul evidence No. 4-1 through 9, Eul evidence No. 2, and 3, the whole purport of the arguments, namely, ① the plaintiff was appointed as a director of the non-party company on April 18, 199 and on April 28, 2005 for the above director on the two occasions since the non-party company was appointed as the director of the non-party company on April 18, 200 and the non-party company on April 18, 202, the plaintiff was not aware of the above circumstances since he did not attend the above general shareholders' meeting or the board of directors' meeting and signed the minutes. However, each statement in Gap evidence No. 23 and No. 24 was believed, and there is no other evidence to acknowledge the above assertion since the plaintiff did not submit the minutes, etc. of the above general shareholders' meeting. Rather, according to the statement No. 99, the plaintiff's term of the non-party company's term and the director BG's minutes were held.

It is acknowledged that the non-party company received notarial deed with the shareholders' certificate of seal impression attached to the meeting minutes of the above general meeting. Considering the close relationship between the plaintiff and the remaining shareholders, it is reasonable to see that the plaintiff was well aware of the circumstances that he/she had been subject to the above-mentioned directors of the non-party company. ② The plaintiff received the wages of 179,500,000 won (average 2,136,905 won per month) from 202 to 2008, and filed a global income tax return by adding the real estate rental income and the wage income amount to the period of 207 from 203 to 207 (this is deemed to have been paid only to the head of the non-party company, and it is hard to find that the plaintiff received 1's wages from the non-party company 20, and there is no other evidence to prove that the plaintiff's 23,240,000 won of the global income tax paid to him/her, as well as the above 201, 31,21.

(3) Therefore, the defendant's disposition of this case based on the premise that the plaintiff is an oligopolistic stockholder of the non-party company is legitimate.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit, and the judgment of the court of first instance is just as it is concluded, and the plaintiff's appeal is dismissed. It is so decided as per Disposition.