Whether the designation of the secondary tax obligor is legitimate;

The plaintiff cannot be deemed to exercise the shares of the non-party company about 51%, or to have controlled its management. Therefore, the disposition imposing the plaintiff on the non-party company as the second taxpayer is unlawful.

Article 39 (Secondary Liability to Pay Taxes by Investor)

[Supreme Court Decision 2007Du17199 ( November 16, 2007)]

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

All of the records of this case and the judgment of the court below and the grounds of appeal were examined, but it is clear that the assertion on the grounds of appeal by the appellant constitutes Article 4 of the Act on Special Cases Concerning the Procedure of Appeal and therefore, the appeal is dismissed pursuant to Article 5 of the above Act. It is so decided as per Disposition

[Seoul High Court 2006Nu26693 (13. 2007.07.13)]

1. The part of the judgment of the court of first instance against the plaintiff head of the plaintiff shall be revoked.

2. On April 8, 2004, the Defendant revoked the disposition of imposition of value-added tax of KRW 17,947,480 on February 2, 2001, value-added tax of KRW 1,730,570 on January 1, 2002, value-added tax of KRW 3,633,980 on January 2002, and corporate tax of KRW 587,630 on January 201.

3. The plaintiff ○○'s appeal is dismissed.

4. The defendant bears the total costs of the lawsuit between the plaintiff ○○ and the defendant. The costs of appeal by the plaintiff ○○ and the plaintiff ○○ are assessed against the above plaintiff.

1. Purport of claim

On April 8, 2004, the Defendant imposed value-added tax of 17,947,480 won, value-added tax of 1,730,570 won, value-added tax of 1,730,570 won, value-added tax of 1,202, value-added tax of 3,623,980 won, corporate tax of 2001, and corporate tax of 587,630 won for 2, 2001, and imposed tax of 3,776,920 won on 2, 2001 against 2, 2,001, value-added tax of 14,956,230 won, value-added tax of 2, 201, 1,442, 140 won, 201, 489, 690 won for 209, and 990 won for 2, 2001.

2. Purport of appeal

The judgment of the court below 1 and 2 of this case and the defendant's disposition of imposition of 3,776,920 won of value-added tax for the second term portion on April 8, 2004, value-added tax for the second term portion on 201, 14,956,230 won of value-added tax for the second term portion, 1,442,140 won of value-added tax for the first term portion on 202, and 489,690 won of corporate tax for the second term portion on 201 shall be revoked.

1. Quotation of judgment of the first instance;

The reasoning for the court's explanation concerning this case is as follows: (a) part of the first instance court's judgment 2-C. part of the second instance court's judgment 2-A, as described in the second instance court's judgment 2-B. The part of the second instance court's judgment 3-B, as described in the second instance judgment 4-2-B. The part of the second instance court's judgment 51/100 or more of the total number of shares held by the plaintiff ○○ and its related parties 51/100 or more of the total number of shares issued by the plaintiff ○○ and its related parties 48-B through 19-B. According to the above facts-finding, the plaintiff ○○○ constitutes an oligopolistic shareholder with the first instance court's reasoning except for the second instance's "the Framework Act on National Taxes" as stated in Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

2. Parts in height:

(a) Facts of recognition;

(1) On June 20, 2001, ○○ building was established from 106-6 to ○○ building company for the purpose of the soil construction business, reinforced concrete construction business, etc., and the trade name was changed to ○○ building company around July 10, 2002. The business was closed on December 31, 2002, and the liquidation procedure was completed on May 23, 2003.

(2) When, while running a construction business, it was registered as a person with bad credit standing and thus it was impossible to establish a corporation under its name, Song-dong established ○○ building by lending the name of the Plaintiff head, ○○○, and ○○○○, the wife, and by borrowing funds from the bonds company, and paying KRW 300 million of the stock price by the so-called fictitious payment method. The Plaintiffs did not invest funds in ○○ building under the pretext of stock price.

(3) From June 20, 2001, the establishment date of ○○○○ was 30% of the total number of issued and outstanding shares, Plaintiff ○○○○ was 25% of the total number of issued and outstanding shares, Song○○○○, 30% of the total number of issued and outstanding shares, and 15% of the total number of issued and outstanding shares, from December 31, 2002.

(4) On the corporate register of ○○○○○○○○, the Plaintiff head of ○○○ from June 20, 2001 to December 30, 202, the Plaintiff head of ○○○○○○, from June 20, 2001 to June 7, 2002, the Plaintiff head of ○○○○○○○○○○○○, the husband of the Plaintiff head of ○○○○○, i.e., the head of ○○○○○○○, from September 5, 201 to June 7, 2002, from June 20 to June 7, 2002, the Plaintiff head of ○○○○○○○○○’s representative director and ○○○○○○○, each of which was recorded as the Plaintiff’s last director, from June 7, 2002 to June 7, 2005 to June 5, 201.

(5) While taking full charge of the management of the ○○○top including the conclusion of a construction contract, ○○○○○○○○○○○ was paid KRW 2.1 million in 2001, and KRW 4.2 million in 2002 as salary. Song○ was paid KRW 4.5 million in 2001 as an employee in the ○○top, but the Plaintiffs did not receive benefits from the ○○top.

(6) Workers, ○○○ and 8 other workers, worked as miscellaneous work at the construction site of ○○ Elementary School, ○○○○○, which was executed by ○○○○○ Construction, and retired, but did not receive wages of KRW 12,182,50 in total. Accordingly, the prosecutor of ○○ District Prosecutors’ Office reported ○○○○○ as the actual representative on July 2, 2002, and requested for a summary order against ○○○○○ as a violation of the Labor Standards Act. On February 28, 2003, the ○○ District Court notified ○○○○○○○ Branch of a summary order of KRW 1 million against ○○○○.

(7) On August 25, 1929, the Plaintiff head of ○○○ was 71 years old at the time of the establishment of ○○ building, and the Plaintiff’s grandchildren and Song○○ reported marriage on August 2, 2001, but reported divorce on April 24, 2003.

(8) From November 12, 1993 to October 16, 2005, Plaintiff ○○○○-dong 187-124, Plaintiff ○○-dong 187-124, and Plaintiff ○○○-dong ○○-dong 2001 to April 25, 2004, respectively, entered the resident registration of ○○-dong 277-83, ○○-dong 277-83.

[Ground of recognition] Each of the above evidence, evidence Nos. 1 through 6, evidence No. 4-1, 2, 3, evidence No. 5, evidence No. 6, and 7, evidence No. 11, evidence No. 13, 14, and 15-1, each of the evidence No. 1, 2, and evidence No. 18, evidence No. 18, evidence No. 1, and the purport of the whole pleadings by the witness of the trial court

B. The part concerning the plaintiff heading ○○

According to the above facts, since the total amount of stocks owned by the plaintiff ○○○ and its related parties is at least 51/100 of the total number of ○○○○○○ issued stocks, the plaintiff ○○○ constitutes an oligopolistic shareholder.

However, the plaintiff head of ○○○○ is only the mother of ○○○ who actually controls the management of the ○○○○○○○○○ (which does not include any evidence to deem that the ○○○○○○○○ is the same, and does not fall under Article 39(1)2(c) of the former Framework Act on National Taxes (amended by Act No. 7008, Dec. 30, 2003). Thus, in order for ○○○○○○ to become the secondary taxpayer of ○○○○○○○○○○○, the plaintiff head of ○○○○○○ should fall under subparagraph 2(a) or (b) of the above evidence 3-4, 5, 6, 8-1, 2, 9-1, 9-2, and 9-1, and 2, there is no evidence to acknowledge that the head of ○○○○○○ was practically exercising the right to shares more than 51/10 of the total number of outstanding stocks of ○○○○.

Therefore, among the dispositions of this case, the part concerning the plaintiff ○○ among the dispositions of this case is illegal, and the plaintiff ○○ is justified.

3. Conclusion

Therefore, the claim of the plaintiff ○○○ is accepted on the ground of its reason, and the claim of the plaintiff ○○○ is dismissed on the ground of its reason. Since the judgment of the court of first instance is unfair on the ground of its conclusion, the appeal of the plaintiff ○○○○○○ is accepted, and the part against the above plaintiff in the judgment of the court of first instance is revoked, and the part against the above plaintiff in the disposition of this case is revoked, and the appeal of the plaintiff ○○○○○○○ is dismissed on the ground