The secondary tax liability for oligopolistic stockholders

At the time of the establishment of tax liability, it is reasonable to deem that the Plaintiff owned 60% of the shares to be an oligopolistic shareholder and was in the position of practically exercising the rights to the shares of the

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

○ Kim

Head of Yeongdeungpo Tax Office

1. The plaintiff's claim is dismissed.

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

The imposition of the additional corporate tax of KRW 19,366,200 (including additional dues) that the Defendant notified the Plaintiff as an oligopolistic shareholder on December 24, 2009 shall be revoked.

1. Details of the disposition;

A. △△△△△ (hereinafter “△△”) established on September 30, 2004 and operated a printing business, and closed on November 20, 2007, and did not pay corporate tax of KRW 25,687,883 for the business year 2007.

B. The Defendant’s designation and disposition of imposition of the second taxpayer against the Plaintiff (hereinafter “instant disposition”).

(1) On December 31, 2007, the date on which the above delinquent tax liability was established, the Defendant deemed that the Plaintiff and thisA owned 3,000 shares out of 5,000 shares issued by the non-party company (Plaintiff 30%, 30% of thisA) as the oligopolistic shareholder, and imposed and notified the Plaintiff and thisA as the secondary taxpayer on December 31, 2008, and each corporate tax of 8,492,360 won for the business year 2007.

(2) After that, the Defendant accepted the Plaintiff’s assertion that the shares owned by EA are owned by the actual owner of the shares of the non-party company. On February 26, 2009, only the Plaintiff was designated as the secondary taxpayer and additionally imposed corporate tax of KRW 8,677,300 for the business year 207.

[Ground of recognition] Facts without dispute, Gap 1, 3 evidence, Eul 1 to 4 evidence, 9-1 and 2 evidence, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

On December 31, 2007, the date when the Plaintiff becomes liable for tax payment, the Defendant rendered the instant disposition on the premise that the Plaintiff is an oligopolistic shareholder of the non-party company. However, as the Plaintiff transferred the entire shares of the non-party company owned by the Plaintiff (hereinafter “instant shares”) and the management right to the non-party company owned by the Plaintiff to the formerB around July 2, 2007, prior to the date when the liability for tax payment was established, the instant disposition made on the premise that the Plaintiff is an oligopolistic shareholder of the non-party company

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

(c) Fact of recognition;

(1) Matters concerning the non-party company

(A) The shareholders’ changes stated in the 2007 Statement are as follows.

(B) The status of the officer’s change after its establishment and until its closure is as follows:

(C) In 2007, the non-party company sold printed machinery to △△, etc. operated by the Plaintiff, and the details of the sale are as follows.

(2) Terms and conditions of a share transfer contract

(A) On June 30, 2007, the Plaintiff drafted a corporate transfer contract with the following contents:

(B) On July 2, 2007, the Plaintiff drafted a new share transfer contract with the following contents:

(C) On July 31, 2007, thisA drafted a share transfer agreement with the formerB, as follows:

(3) On the other hand, on the balance sheet as of November 20, 2007, the ratio of provisional payments of KRW 240,500,547 of total assets amounted to KRW 97% (233,90,000) is reached, and the statement of provisional payments, etc. is written that the non-party company paid KRW 233,90,000 to BB.

(4) Other matters.

1. ThisA is the child of the spouse who is remarriedd by the plaintiff.

② Since August 2006, the formerB had been working as a business employee of the non-party company and registered as the representative director on July 4, 2007.

[Reasons for Recognition] Gap evidence 2, Eul evidence 4, 6 through 8, Eul evidence 10, 11 (including paper numbers), the witnessB's testimony, and the purport of the whole pleadings

D. Determination

(1) Whether the Plaintiff constitutes an oligopolistic shareholder under Article 39(1)2(a) of the Framework Act on National Taxes

(A) Whether it constitutes an oligopolistic shareholder under Article 39(1)2 of the Framework Act on National Taxes 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 the list of stockholders, the statement of stock transfer 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 that the actual shareholder was stolen or registered in the name other than the name of the real shareholder, it cannot be deemed as a shareholder only in such name, but it shall not be deemed as a shareholder (see, e.g., Supreme Court Decision 2003Du1615, Jul. 9, 2004). In addition, the exercise of rights by 51% or more as referred to in the above item (a) does not necessarily require the actual exercise of a shareholder's right.

(B) According to the statement of the change in stocks, etc. of the non-party company and the statement of the transfer of stocks and equity shares of the non-party company, the plaintiff acquired 3,900 shares of the non-party company (2,400 shares in the non-party company + 1,500 shares in the non-party company's name) and stated that 90 shares were transferred to the non-partyB on July 2, 2007, and that as of December 31, 2007, the plaintiff was holding 3,00 shares (1,50 shares in the non-party company's name + 1,500 shares in the non-party company's name recognized as actual ownership) as of December 31, 207. Thus, as of December 31, 2007, the date on which the tax liability is established, the total amount of shares owned by the plaintiff company as of December 31, 200 shares is not the non-party company's 2.

(C) Therefore, it is difficult to believe that the Plaintiff transferred all of the instant shares to BB on July 2, 2007, prior to the date on which the Plaintiff’s tax liability was established, in light of the following circumstances that are acknowledged by comprehensively taking into account the facts of the recognition and the overall purport of the pleadings, as follows, as to whether the Plaintiff transferred all of the instant shares and the management rights of the non-party company to B on or around July 2, 2007, and the testimony of the witness BB on or before the date on which the Plaintiff transferred the instant shares and the management rights of the non-party company. Accordingly, the Plaintiff’s assertion is without merit.

① The witnessB stated that the purchase price of shares 1,500 shares in the name of thisA was paid in 3-4 times to the mother or her natives and children of thisA. However, the witnessB stated that the purchase price of shares in the name of thisA is included in 15 million won paid to the Plaintiff and made a consistent statement on the details of the payment and the amount of payment.

② In addition, the formerB stated that the acquisition price of 1,500 shares in the name of thisA is KRW 9 million (6,000 per share). However, the stock transfer contract made between the former BB and the Plaintiff is in blank. The stock transfer contract made between the former BB and the Plaintiff states that the acquisition price per share for 900 shares is KRW 10,000, and the former BB did not know about the acquisition price per share of the non-party company at the time of the acquisition of shares.

③ The Plaintiff asserted that the formerB transferred all rights, such as the right to manage the non-party company with respect to the non-party company. However, the formerB made a statement that the non-party company's provisional payment of KRW 233,900,000,00 to the formerB was well known, and then used the above amount as the account for the provisional payment of KRW 233,90,000,000 to the formerB, and then whether it was used as the account for the non-party company's provisional payment. In light of the fact that the accounting company made a statement that it was well known of the financial situation of the non-party company, such as how the accounting

④ Rather, although JeonB had taken over a company other than the lawsuit, it did not think that the above company was fully taking over, it was not well aware of the tenant, deposit, and monthly rent of the non-party company, and the plaintiff stated that it was believed that all of the plaintiff would have been settled, there is a circumstance in which the plaintiff still exercised control over the non-party company.

⑤ The formerB took over the non-party company’s printing machines from March 2007 with the condition that the printing machines of the non-party company were sold until March 2007. However, the fact that the non-party company acquired KRW 23,900,000 in the income statement of the non-party company (the formerB stated that the two printing machines were leased and used, but the machinery rent was not appropriated in the income statement of the non-party company) and the non-party company acquired KRW 30,000 in the income statement of the non-party company was operated in the month of the mid-term.

④ In light of the fact that the shares and the corporate transfer contract for the transfer of the shares and the management rights of the company were made up to July 2007 with the sale of all major assets of the company by around March 2007, and that the transfer of the shares and the management rights of the company was closed after four months from the date of the provisional payment, and that the share and the corporate transfer contract for the transfer of the company were leaked to 233,90,000 won for the provisional payment, the above share and the corporate transfer contract for the transfer of the company are likely to be effective for the purpose of tax evasion in the status where the closure of the business was scheduled.

7. The statement of the change in stocks, etc. of the non-party company does not fully reflect the fact of change in stocks, etc. as alleged by the Plaintiff (the Plaintiff asserts that the statement of change in stocks, etc. was erroneously stated on the wind that the tax accountant neglected to submit data, but no evidence exists to acknowledge it)

(2) Sub-committee

At the time of December 31, 2007, the date of establishing the instant tax liability, it is reasonable to view that the Plaintiff owned 60% (1,500 shares in the Plaintiff’s name + 1,500 shares in the Plaintiff’s name) of the total shares of Nonparty Company and was in a position to exercise the rights to the shares of Nonparty Company as well as the oligopolistic shareholders under Article 39(1)2(a) of the Framework Act on National Taxes.

Therefore, the instant disposition that the Defendant deemed the Plaintiff to be an oligopolistic shareholder under Article 39(1)2(a) of the Framework Act on National Taxes is lawful.

3. Conclusion

The plaintiff's claim is dismissed on the ground that it is without merit.