early 2014west0329 ( October 22, 2014)

Whether to judge oligopolistic shareholders

Whether it is an oligopolistic stockholder shall be determined by whether it is a member of a group holding a majority stocks.

2014Guhap63459 Revocation of Disposition of Imposing corporate tax, etc.

KimA

O Head of tax office

November 21, 2014

December 12, 2014

1. Of the instant lawsuits, the part of the claim for revocation regarding each disposition of the additional corporate tax surcharge for the business year 201 and the additional tax surcharge for the second term of 2011 shall be dismissed.

2. The plaintiff's remaining claims are dismissed.

3. The costs of lawsuit shall be borne by the Plaintiff.

Cheong-gu Office

The Defendant’s imposition of corporate tax on May 1, 2013 against the Plaintiff and the value-added tax OOO for the year 201 shall be revoked.

1. Details of the disposition;

A. On May 1, 2013, the Defendant notified the Plaintiff that the Plaintiff would pay the total amount of KRW OO(s) and additional OO(s) of corporate tax for the business year 2011 and KRW 201,000,000,000 to KRW 200,000,000,000,000,000,000,0000,000,000,000,000,000,0000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,00,00,00.

B. The Plaintiff appealed and filed an appeal with the Tax Tribunal on December 13, 2013 on July 31, 2013, but was dismissed on April 22, 2014.

2. Ex officio whether the part concerning the claim for revocation of the disposition imposing additional dues among the instant lawsuit is legitimate, as to whether the part concerning the claim for revocation of each disposition imposing additional dues for the business year 201, additional dues for the business year 201, and additional dues for the second and second years 201 were legitimate, and if national taxes are not paid by the due date, it naturally occurs pursuant to the legal provisions without the final procedure of the tax office, and thus, the notification of additional dues cannot be deemed a disposition subject to appeal litigation (see Supreme Court Decision 2005Da15482, Jun. 10, 2005).

(see) Therefore, among the instant lawsuits, the part on the claim for revocation regarding the respective imposition of additional tax on corporate tax for the business year 201 and additional tax on the second term of 2011 is unlawful.

3. Whether the instant disposition is lawful

A. The plaintiff's assertion

When his father returns to Byung in 1989, the plaintiff who was studying in the United States at the time of his father's return to Byung in 1989 is urgent.

Since his father owned a large number of real estate before his birth, four siblings, including the Plaintiff, were inherited, but at the time, no inheritance tax was paid. They were to deal with all issues related to inheritance, and the remaining siblings, including the Plaintiff, including the Plaintiff, left KimCC with his seal impression and identification card. Since then around 1994, KimB established the instant company. Since there was no understanding or knowledge about the establishment of the corporation, KimB requested the establishment of the instant company to the original FF, who was in charge of the establishment of the instant company in the capacity of KimCC, and the original FF was a corporation operated by KimB, a corporation operated by the instant company, and used a seal impression, identification card, etc., which was kept in custody for the inheritance processing of the instant company. In other words, KimB, by misappropriation misappropriation’s unlawful use of the Plaintiff’s name, should have been revoked, and thus, the Plaintiff was found to have participated in the instant company’s management.

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

1) KimB shall be the instant company for the purpose of the business of manufacturing and selling computers on May 12, 1994

The establishment was established.

2) On September 25, 1989, the Plaintiff’s father Kim Jong-Un, the father of the Plaintiff died in around 1989, the registration of ownership transfer was completed on the ground of inheritance by consultation division on September 25, 1989. The Plaintiff completed the registration of ownership transfer as to each of the above real estate under the name of HH company, 405-1 return, 8,665m2, OO-si, O-si, O-si, O-si, 405-3 1,057m2, 879/1057m2, O-si, O-si, O-si,057m2, O-si, O-si, 1,057m2, 87m21/4m21, 1989.

3) On June 28, 1995, the Plaintiff established △△ Co., Ltd. for the purpose of export and import of electronic equipment miscellaneous goods, wholesale and retail business, etc. The KimB in the corporate register of the above company was registered as a director from June 28, 2004. The instant company is the main sales office of △△.

4) The instant company offered new shares with capital increase in 2002 and 2006. At the time, new shares were allocated according to the ratio of shares of KimB (35%) E (10%) MaE (10%) KimCC (10%) KimD (35%) and Plaintiff (10%)’s (10%).

5) On August 31, 1989, the Plaintiff left the Republic of Korea for the purpose of studying, but went to Hong Kong for more than five days from September 27, 1989 and went to Hong Kong on five occasions, there is no sign of stay in the Republic of Korea until October 21, 2014, except that the Plaintiff went to Hong Kong for two to four days. The Plaintiff was married to the Republic of Korea from around 192 to around 193.

6) KimB attended this Court as a witness and stated to the following purport:

D. Determination

1) Article 39 subparag. 1 of the former Framework Act on National Taxes (amended by Act No. 11124, Dec. 31, 201)

Whether it constitutes an oligopolistic shareholder under subparagraph 2 of paragraph (1) shall be determined by whether it is a member of a group of stocks owned by the majority. 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 is proven by the tax authority through the data, such as a list of stockholders, a statement of stock movement, or a list of corporate register, etc.: Provided, That even if it appears to be a single shareholder in light of the above data, if there are circumstances, such as that the actual shareholder was stolen from the name of the shareholder or registered in a name other than the real shareholder, the actual shareholder cannot be deemed to be a shareholder, but the nominal owner who asserts that he is not a shareholder should prove that he is not a shareholder (see Supreme Court Decision 2003Du1

2) We examine the following circumstances, i.e., (i) the Plaintiff’s assertion from around 1989 to around 1994 that the Plaintiff had KimCC or KF keep his seal imprint and identification cards, etc. for a period of at least five years, and (ii) KimB made it difficult to obtain them easily, and (iii) the Plaintiff’s assertion that it was made on documents as if it was held, although it was not actually held during the operation of the instant company, because the Plaintiff’s shareholders, including the Plaintiff, did not use his seal imprint and the overall purport of the pleadings. In the Plaintiff’s assertion, it is difficult to readily obtain the Plaintiff’s opinion that the FF, who was in custody of the shareholders of the instant company including the Plaintiff, created documents related to the shareholders’ general meeting without using his seal imprint; and (iv) the Plaintiff’s submission of documents related to the Plaintiff’s allegation that it was insufficient to establish Kim 28, Jun. 28, 195 and the Plaintiff’s submission of documents related to the shareholders’ general meeting.

4. Conclusion

Therefore, among the instant lawsuits, the part of the revocation claim against each disposition of the additional corporate tax surcharge for the business year 201 and the additional tax surcharge for the second half of 2011 is unlawful, and thus, it is dismissed. The remainder of the Plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.