Early High Court Decision 2015J 0505 ( October 25, 2015)

The legitimacy of the disposition of designating the claimant as the secondary taxpayer for the amount in arrears and giving the notice for payment, considering the claimant as the oligopolistic shareholder.

In light of the fact that the claimant is a shareholder or an executive officer of the delinquent corporation and the evidence presented alone is insufficient to recognize the claimant as a shareholder in the form of the delinquent corporation, etc., the claimant is designated as a secondary taxpayer and the disposition of notifying the delinquent amount equivalent to the ratio of shares

Article 39 of the Framework Act on National Taxes

Suwon District Court 2015Guhap64856 (20 April 2016)

Fixed*

○ Head of tax office

oly, 2016.16

2016.04.20

1. The Defendant’s imposition of value-added tax of KRW 48,457,760 and additional tax of KRW 2,505,950 and value-added tax of KRW 2,50 for the year 2013 against the Plaintiff on June 17, 2014, and the value-added tax of KRW 13,261,760 for the year 2014, and the earned income tax of KRW 26,063,80 for the year 2013 and additional tax of KRW 1,253,40 for each disposition shall be revoked

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

The same shall apply to the order of the Gu office.

1. Details of the disposition;

A. The Company** Construction (hereinafter referred to as the “instant Company”) is a corporation that was closed on March 10, 2014 while engaging in housing construction business from April 15, 1999.

B. The number of shares issued by the instant company was 90,000 shares. From July 1, 2013 to March 7, 2014, the number of shares issued by the instant company was 90,000 shares, * 39,200 shares (49%) as representative director from July 1, 2013 to March 7, 2014, and * 20,70 shares (25.8%; hereinafter referred to as "the shares in this case") are registered as holding shares of the Plaintiff, who is *. The corporate register of the instant company, was registered as being appointed as an internal director on July 1, 2013.

C. The instant company defaulted 197,533,90 won in total of value-added tax and additional dues for year 2013, value-added tax for year 2014, value-added tax for year 2014, and 105,880,70 won in total of earned income tax and additional dues for year 2013.

D. When the assets of the instant company were unable to collect the amount in arrears with the assets of the instant company, the Defendant deemed the oligopolistic shareholder as of June 17, 2014 pursuant to Article 39 subparag. 2 of the Framework Act on National Taxes and the Plaintiff as of the date on which each of the above tax liability of the instant company was established, and fixed* and the Plaintiff as the secondary taxpayer. The Plaintiff notified the Plaintiff that the amount corresponding to the Plaintiff’s share out of the amount of the corporate tax in arrears, namely, value-added tax of 48,457,760, and additional tax of 2,505,950, value-added tax of 261,760, value-added tax of 2014, value-added tax of 13,261,760, and wage and salary income of 26,063,800, and additional tax of 1,253,400 won (hereinafter “instant disposition”).

E. The Plaintiff dissatisfied with the instant disposition and filed an appeal on November 28, 2014, but the Tax Tribunal dismissed the Plaintiff’s appeal on March 25, 2015.

[Ground of recognition] Facts without dispute, Gap evidence 1-5, Gap evidence 3, 4, 7, 9, Eul evidence 1, and the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The actual shareholders of the instant shares, which have been registered as shareholders and in-house directors of the instant company in the name of the Plaintiff, are determined***, solely operated by the instant company, and only the shares and the names of its executives were distributed to their families including the Plaintiff. The Plaintiff was formally registered as shareholders and in-house directors of the instant company. At that time, the Plaintiff was in military service,** was not aware of the fact that he was registered as shareholders and in-house directors of the instant company, and there was no actual exercise of rights to the instant shares, nor was there any fact that he was involved in the management of the instant company, and there was no fact that the Plaintiff actually exercised rights to the instant shares, nor received any monetary amount, such as remuneration or dividends, from the instant company. Accordingly, the instant disposition based on the premise that

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

1) Whether it constitutes an oligopolistic shareholder under Article 39 subparagraph 2 of the Framework Act on National Taxes shall be determined by whether it is a member of a group of stocks owned in excess of 50/100 in a special relationship. 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 can only be proven by the tax authority based on the data, such as the register of stockholders, the statement of stock movement, or the register of corporate register, etc., but, even if it appears to be a single shareholder in light of the above data, if there are circumstances such as by using the name of the shareholder or by registering the name in which it is not the real owner, it cannot be deemed as a shareholder only in the name of the shareholder, but it must be proved by the nominal owner who claims that he is not a shareholder (see, e.g., Supreme Court Decisions 2003Du1615, Jul. 9, 2004; 2009Du7578

2) As of the date on which the liability to pay the tax on wage and salary income accrued in 2013 and 2014 was established in the instant case, the Plaintiff’s father and the Plaintiff’s total amount of shares exceeds 50/100 of the total number of shares issued by the instant company as of the date of the establishment of the liability to pay the tax on wage and salary income accrued in 2013 and 2014 as of the date of the establishment of the Plaintiff’s father and the Plaintiff’s father and the Plaintiff’s total shares exceeds 50/100 of the total number of shares issued by the instant company as of January 1 (the circumstances of the disposition). However, in light of the following circumstances revealed in light of Gap’s evidence Nos. 2, 5, 7, 8, Gap evidence No. 12-1, 12-2, A, 13, 14, and 15, the witness’s testimony * (i.e., the Plaintiff’s name without permission

A) Fixed** incorporated the instant company and operated it as one substantially until the closure of the business on March 10, 2014, and registered it as an executive officer of a shareholder or company by lending its name such as the correction representative, ** or *, etc., but no correction representative, *, *, this*, etc.* did not participate in the management of the instant company or exercise the authority as a shareholder.

B) Fixed** and this** was divorced on September 1, 2009, the plaintiff, who was the third year of a middle school at that time, was brought up by this**, and the plaintiff was discharged on July 23, 2012 from military service on the year when he was living together with this**, and the plaintiff was discharged on April 22, 2014.

C) The shareholder registry of the instant company is registered as holding the instant shares from July 1, 2013 to March 7, 2014. The corporate registry is registered as holding a company director of the instant company from July 1, 2013 to March 1, 2014. However, there is no evidence to acknowledge that the Plaintiff was in military service for the aforementioned period, as seen in the foregoing B, and otherwise, the Plaintiff was involved in the management of the instant company, or exercised its shareholder’s authority.

D) Fixed** in this court* demanded that the Plaintiff be deducted from the shareholders and executive officers of the instant company, and transferred the Plaintiff’s shares in its name on July 1, 2013 ** the Plaintiff’s name, and re-in-house director, etc., and there was no reason to inform the Plaintiff of such fact. The Plaintiff’s design necessary for the preparation of documents was received from this***. The Plaintiff’s intention was paid at will. There was no need to receive or demand the Plaintiff’s share payment in relation to the instant company. There was no benefit or monetary compensation for any name. In relation to the instant company, the Plaintiff testified that the Plaintiff did not notify the Plaintiff of the transfer of the Plaintiff’s shares in its name on March 7, 2014.

E) There is no evidence suggesting that the Plaintiff received dividends from the instant company as a shareholder or received benefits in the position of an officer.

3) The instant disposition is unlawful.

3. Conclusion

The plaintiff's claim of this case is reasonable, and it is so decided as per Disposition.

Judges Choi*

Judges Kim*

Judges Hong*