Cho High Court Decision 2008Du3305 ( December 08, 2008)

oligopolistic shareholders’ secondary tax liability does not violate the principle of no taxation without law and the principle of no taxation without law.

In the decision of the Constitutional Court 97Hun-Ga13, the scope of oligopolistic shareholders who are liable for secondary tax liability and the limit of liability are revised in accordance with the unconstitutionality of the secondary tax liability of oligopolistic shareholders under the former Framework Act on National Taxes, not violating the principle of excessive prohibition.

The contents of the decision shall be the same as attached.

Article 21 (Establishment Date of Liability for Tax Payment)

1. The plaintiff's claim is dismissed.

2. The costs of the lawsuit shall be borne by the plaintiff.

피고가 2008. 7. 28. 원고에 대하여 한 주식회사 인터내셔날▢▢▢▢☆☆가 납세의무자인 원천징수 근로소득세 101,790원(2007년 12월분+2008년 2, 3월분), 부가가치세 12,443,390원(2007년 제2기분+2008년 제1기 예정분)의 각 부과처분을 취소한다.

1. Basic facts

가. 주식회사 인터내셔날▢▢▢▢☆☆(이하, '소외 회사'라고 한다)는 별지 체납내역 기재와 같이 2007년 2기분 및 2008년 1기분 부가가치세와 2008. 1.부터 4.까지의 원천 징수 근로소득세 합계 41,817,510원(이하, '이 사건 체납국세'라고 한다)을 체납하였다.

B. On July 28, 2008, the Defendant: (a) the representative director of the non-party company Kim○○ (a 70% shareholder of total issued shares) and the Plaintiff (a 30% shareholder of total issued shares) are the secondary taxpayers under Article 39(1)2(c) of the Framework Act on National Taxes; (b) on December 2008, the Defendant notified the Plaintiff to the effect that: (c) on December 2007, the amount equivalent to the Plaintiff’s share ratio (30%) out of the amount of tax in arrears on the non-party company’s tax amount; (c) KRW 4,600 (including additional tax; hereinafter the same shall apply); (c) the amount of tax in arrears on the earned income accrued in February 2008, the amount of tax on the earned income accrued in March 5, 208, the amount of tax on the earned income accrued in March 205 (total 101,790 won); and (c) the amount of tax on the non-party company’s tax amount to be paid.

C. The Plaintiff and Kim ○○ agreed to divorce on May 6, 2008, and consultation with the competent authority on July 15, 2008

A divorce was reported.

[Reasons for Recognition] In the absence of dispute, Gap evidence 1 through 5, Eul evidence 4, 5, Eul evidence 1-1, 2, Eul evidence 2, Eul 2, 3, 4, Eul evidence 5-1 through 6, Eul evidence 6-1 through 6, Eul evidence 7-1 through 6, Eul evidence 8-1 through 6, Eul evidence 16, 17, Eul evidence 17, the purport of the whole pleadings.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) The plaintiff is not a major shareholder of the company overseas for the following reasons, so it does not correspond to the person liable for secondary tax payment.Therefore, the disposition of this case is unlawful.

(A) The Plaintiff was registered on the register of shareholders as holding 30% of the shares of the non-party company, but this was arbitrarily registered by Kim ○○ as a shareholder of the non-party company. The Plaintiff did not participate in the management of the company while the Kim ○ operated the non-party company, or exercised its rights as a shareholder.

(B) In order to establish the secondary tax liability, there must be a fact that meets the requirements such as the delinquency of the principal taxpayer. Of the instant disposition, each of the wage and salary income taxes accrued in February 3, 2008 and the Llst (Scheduled) Value-Added Tax in 2008 among the instant disposition, the relevant payment deadline was May 31, 2008 and June 30, 2008, and the Plaintiff was mixed with Kim○ on May 6, 2008, which was prior to the arrival of each of the above payment deadline.

(2) Article 39(1)2(c) of the Framework Act on National Taxes provides that the spouse of the person referred to in items (a) and (b) or his/her lineal ascendant or descendant who lives with him/her shall be liable to pay the secondary tax regardless of whether the said person exercises a substantial right to the shares issued by the pertinent corporation with 51% of the total amount of shares issued by the pertinent corporation is unconstitutional as it violates the principle of tax equality and the principle of no taxation without law and infringes on property rights. Thus

(b) Related statutes;

Article 21 (Establishment Date of Liability for Tax Payment)

C. Determination

(1) Whether the person is the person liable for secondary tax payment

(A) A major shareholder liable for secondary tax liability under Article 39(1)2(c) of the Framework Act on National Taxes is sufficient if he/she is the spouse of a person falling under items (a) and (b) or a lineal ascendant or descendant who lives with him/her and is an oligopolistic shareholder living with him/her, and does not need to be a person who actually controls the company’s management or exercises a substantial right to the company’s stocks. In addition, the assertion that a single oligopolistic shareholder is not a shareholder for the purpose of denying the secondary tax liability should be proved on the ground that the actual oligopolistic shareholder was stolen in the name of the shareholder or that he/she is merely a shareholder rather than a de facto shareholder (see, e.g., Supreme Court Decision 2003Du1615, Jul. 9, 2004). Since it is difficult for the Plaintiff to believe that each statement of evidence No. 3 and evidence No. 17, which the Plaintiff is merely a nominal shareholder, and the above assertion is insufficient to recognize only the statement of evidence No. 8.

(B) Article 39(1) of the Framework Act on National Taxes imposes secondary tax liability on the spouse recognized as oligopolistic shareholder as of the date when the liability to pay national taxes is established, and Article 21(2)1 and 3 of the same Act imposes the obligation to pay value-added tax for the scheduled return period upon the expiration of the interim prepayment period or the scheduled return period, and the obligation to pay withholding income tax is constituted when income is paid. Accordingly, the scheduled return period of the first (Scheduled) value-added tax for the company in 2008 is April 25, 2008 and the due date of payment of the wage and salary income tax for February 2008 and the wage and salary income for March 208 is the due date of payment of the wage and salary income tax for February 2008 and March 6, 2008, which was agreed to divorce between the Plaintiff and Kim○○○○ on or before May 6, 2008, the Plaintiff constitutes the second taxpayer. Therefore, the Plaintiff’s assertion on this issue is without merit.

(2) Whether Article 39(1)2(c) of the Framework Act on National Taxes is unconstitutional

Article 39 (1) 2 (c) of the Framework Act on National Taxes has its legislative purpose to prevent substantial tax equality since a controlling shareholder, etc., who is in a position to use the property as a means of tax avoidance in substantially operating a stock company, has a high risk of hiding the property under the name of his spouse and lineal ascendants and descendants living together with him or evading taxes by falsely transferring it to them, and thus, it is recognized that it is reasonable. The current Framework Act on National Taxes, which was decided as unconstitutional on May 28, 1998 by the Constitutional Court Decision 97Hun-Ga13 of the former Framework Act on National Taxes (amended by Act No. 5579 of Dec. 28, 1998), Article 39 (1) 2 (c) of the former Framework Act on National Taxes (amended by Act No. 5579 of Dec. 28, 1998), upon acceptance of the purport of the above decision of unconstitutionality and thus, the scope of oligopolistic shareholder under Article 39 (1) 2 (c) of the same Act cannot be viewed as the total number of stocks issued and outstanding.

3. Conclusion

Thus, the plaintiff's claim of this case seeking revocation on the ground of illegality of the disposition of this case is dismissed as it is without merit.