Seoul Administrative Court 2008Guhap14852 ( October 17, 2008)

Examination Other 2007-075 ( December 31, 2007)

The exclusion period for secondary tax liability shall expire five years from the expiration of the payment period for the principal tax liability.

With respect to the secondary tax liability, the exclusion period of the imposition shall proceed separately from the main tax liability, and the exclusion period shall be five years from the date of establishment of the secondary tax liability with the seal on which the second tax liability can be imposed unless there are special circumstances, and it shall be established upon the occurrence of the cause, such as the arrears of the main taxpayer, and at least after the expiration of the payment period

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

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance shall be revoked. ① The Defendant’s imposition of KRW 98,832,450 of corporate tax for the business year 2001 and value-added tax of KRW 44,755,410 of the first term portion of the business year 2001 against the Plaintiff, and ② The notice of change of KRW 268,346,959 of the income accrued in June 5, 2007 shall be revoked, respectively.

1. Quotation of judgment of the first island;

The court's explanation of this case is as follows: "The second 2nd 18th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th 200

2. Matters to be judged additionally;

A. The Plaintiff asserts that it is unlawful for the Plaintiff, who is a natural person having a personality separate from the instant company, to bear the instant tax liability as a double taxation, but it cannot be said that it is a double taxation to impose the secondary tax liability on an oligopolistic stockholder of a corporation pursuant to Article 39 of the Framework Act on National Taxes.

B. The plaintiff himself is not a shareholder in the form of the company of this case and is merely a management of the company of this case.

Since it did not have been the case, the second liability for tax payment is not an oligopolistic shareholder. The issue of whether a shareholder is an oligopolistic shareholder under Article 39(1)2 of the Framework Act on National Taxes shall be determined by whether a group of stocks owned by the majority. Specifically, even if there are no facts involved in the management of the company, it shall not be determined that a shareholder is not an oligopolistic shareholder. The fact of ownership of stocks shall be proved by the tax authority based on the data, such as the list of shareholders, specifications of stock movement, corporate register, etc. However, even if a shareholder 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 in the name other than the de facto ownership, it shall not be deemed that the name alone does not constitute a shareholder, but it shall be proved by the title holder who is not the shareholder (see Supreme Court Decision 2003Du1615, Jul. 9, 2004). 204.

C. Furthermore, the Plaintiff asserts that the disposition of this case was unlawful since it was made after the lapse of five years from June 30, 201 and December 31, 2001, which was the date on which the liability to pay the value-added tax and the corporate tax of this case was established, and that the exclusion period of the imposition of the second tax liability is in progress separately from the main liability to pay the taxes, and that the exclusion period is five years from the date of establishment of the second tax liability on which the second tax liability to impose the taxes can be imposed unless there are special circumstances (see Supreme Court Decision 2006Du11750, Oct. 23, 2008); the second tax liability is established due to the occurrence of the cause such as the arrears of the main taxpayer; thus, the payment period of the main tax liability is established after the expiration of the main liability to pay taxes (see Supreme Court Decision 2003Du13083, Apr. 15, 2005).

3. Conclusion

Therefore, the judgment of the court of first instance is legitimate, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.