Cho Jae-2015-west-5497, 5498, 5499 ( December 31, 2015)

Whether the plaintiffs are oligopolistic shareholders of the corporation of this case

The plaintiffs are oligopolistic shareholders under Article 39 subparagraph 2 of the Framework Act on National Taxes with respect to the national taxes of the corporation of this case and cannot be deemed to bear the secondary tax liability for the delinquent tax amount of the corporation. Thus, the disposition of this case is unlawful.

Article 39 of the former Framework Act on National Taxes (Investors' Secondary Liability for Tax Payment)

Disposition Revocation of Tax Imposition

Cho 00-2

00. Head of tax office

October 01, 2016

on January 20, 2010

1. On May 26, 2015, the Defendant: (a) designated the Plaintiffs as secondary taxpayers of 000, and revoked all of the imposition dispositions stated in the separate disposition list against the Plaintiffs.

2. The costs of the lawsuit are assessed against the defendant.

1. Details of the disposition;

A. On March 23, 2006, a stock company 000 (hereinafter “instant company”) was engaged in the construction business by starting the business on March 23, 2006 and closed ex officio on March 31, 2015. The instant company was in arrears with the total of KRW 313,625,200 in total of the value-added tax, additional tax, and additional tax for the first and second years in March 31, 2015 as listed below, and KRW 56,841,520 in total of the wage and salary income tax, additional tax, and additional tax for the business year 2014 as listed below.

Items of Taxation

Deadline for payment

Amount in arrears

Liability for Tax Payment

Date of establishment

Value-added Tax

June 30, 2014

145,952,960

April 25, 2014

September 30, 2014

153,198,720

June 30, 2014

March 15, 2015

14,473,520

December 31, 2014

Earned income tax

September 30, 2014

5,880,960

June 30, 2014

March 15, 2015

960,560

December 31, 2014

Total

370,466,720

B. The number of shares issued by the instant company is 80,000 shares. The detailed statement on the change of shares, etc. issued by the instant company is recorded as holding 30,000 shares, which is the father of the Plaintiffs, 00 shares as of December 31, 2014, the mother of the Plaintiffs is 20,000 shares, and 10,000 shares, respectively.

C. On April 24, 2015, pursuant to Article 39 subparag. 2 of the former Framework Act on National Taxes (amended by Act No. 12848, Dec. 23, 2014; hereinafter the same), the Defendant deemed the Plaintiffs as oligopolistic stockholders of the instant company at the time when the liability for tax payment is established, and designated the secondary taxpayer. On May 26, 2015, the Defendant notified the Plaintiffs of each of the payment of each of the national taxes in arrears (hereinafter referred to as “each of the dispositions in this case”) listed on the separate list of disposition amounting to the Plaintiffs’ share ratio (12.5% each of the national taxes in arrears of the instant company) (hereinafter referred to as “each disposition in this case”).

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 4 through 7, 9, 20, Eul evidence No. 1 (including relevant numbers), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. Article 39 Subparag. 2 of the former Framework Act on National Taxes provides that “A person prescribed by Presidential Decree among a shareholder or one limited partner and his/her related parties, whose total amount of stocks held or investments exceeds 50/100 of the total number of outstanding stocks or investments of the relevant corporation, and who actually exercises rights thereto, shall be deemed an oligopolistic shareholder. Whether a person constitutes such oligopolistic shareholder shall be determined on the basis of whether a person actually exercises rights to the relevant stocks through voting rights, etc. (see, e.g., Supreme Court Decision 2011Du26046, Mar. 10, 206). The tax authority may prove the ownership of stocks equivalent to an oligopolistic shareholder based on the data, such as a list of shareholders, a statement of stock transfer status, or a list of corporate register, etc.: Provided, That even in cases where a shareholder appears to be a single shareholder in light of the above data, if such circumstance exists, such person can only be deemed as a shareholder under the name of the relevant corporation, or a shareholder is not a nominal shareholder (see, 2005Du754, etc.

B. Examining the aforementioned facts in light of the aforementioned legal principles, as of the date when the liability for tax payment of the first and second value-added taxes for the year 2014 and the labor income tax for the business year 2014 (the date when the liability for tax payment of each of the above value-added tax is established is April 25, 2014; June 30, 2014; and December 31, 2014; the date when the liability for tax payment of the labor income tax for withholding was established is June 30, 201; December 31, 2014; the date when the aforementioned liability for tax payment of the labor income tax for withholding was established is the father of the Plaintiffs; the sum of net000 stated in the statement on changes in stocks, etc. of the instant company; and the aggregate of the stocks owned by the Plaintiffs exceeds 50/100 of the total number of stocks generated by the instant company, and the Plaintiffs are liable for the tax in arrears as of the second taxpayer’s national tax.

C. However, considering the following facts and circumstances, it is reasonable to deem that the net0 borrowed the plaintiffs' names to acquire the shares of the company of this case and actually controlled and operated the company of this case, considering Gap's statements in Gap's Nos. 4, 5, 6, 10 through 14, 19 through 26, 32 through 37 (including the pertinent numbers), witness 00, witness 00 testimony in this court's notary public, 00 law firm and 00 as a result of each fact-finding inquiry about the law firm, and the notary public's order to submit financial transaction information to 0 banks in this court to 00, together with the whole purport of the pleadings, it is reasonable to deem that the net0 borrowed the plaintiffs' names and acquired the shares of the company of this case, and the circumstances asserted by Eul Nos. 2 through 7 (including the pertinent numbers) and the defendant are insufficient to reverse the above recognition, and there is no other counter-

1) The net00 paid to the company of this case by withdrawing KRW 750 million out of the company's capital 80 million from January 6, 2006 to June 5, 2006; March 12, 2008; and September 19, 2008 to September 3, 2008 to deposit the company's stock price accounts. The company of this case paid KRW 50 million to the company of this case by depositing it out from its own account and depositing it into the company's stock price accounts. The company of this case paid KRW 30 million to the company of this case. ① The first source of the company's capital of KRW 80 million to the company of this case was deposited KRW 80 million to the company of this case with KRW 00,000,000, KRW 200,000 deposited into the company's stock account of this case; ② the cause of the deposit of the company of this case's KRW 200,000.

Considering that Plaintiff 00’s account (00 bankxx-xxxxx) was deposited with KRW 32 million from June 2, 2006 to the account on June 5, 2006, which was 000, but later deposited with Plaintiff 00 to the other account (00 bankx-xx-xxxx) (33,430,012 that was deposited with Plaintiff 00 to the other account (0 bankx-x-x-xxx) and deposited with Plaintiff 00 to the above account (00 bankx-x-x 9,00 that was 10 to the above 00 company’s account (00 to the above 00 companyx 9,000 that was 20 to the above 00 company’s account, the Plaintiffs appears to have not had a job prior to marriage around 200 to the above 09 company’s account, but all of the Plaintiffs were to have been deposited with the other company’s account on March 12, 200008, respectively.

2) The 000 was appointed as the representative director at the time of the incorporation of the instant company and the corporate register concerning the instant company included 000 as the representative director of the instant company until November 28, 201, but it appears that the net 000 was actually operating the instant company for the said period. In addition, on November 28, 201, the net 00 was operated the instant company before the Plaintiff was appointed as the representative director of the instant company and died on February 4, 2015.

3) The corporate register concerning the instant company stated that, on November 28, 201, Plaintiff 00 assumed office as an internal director of the instant company on November 28, 201, Plaintiff 200 was on the part of November 28, 2014. However, Plaintiff 00 worked for the instant company from January 1, 2008 to 00 companies. Moreover, there is no evidence that Plaintiff 00 received benefits from the instant company during the period in which Plaintiff 1 was registered as the internal director of the instant company.

4) The Plaintiff 00 completed the PD course from January 9, 2008 to June 23, 2008, and completed the PD course from July 8, 2008 to February 12, 2012, from February 13, 2012, the Plaintiff 00 was working for a company from 000 to February 13, 2012, but it appears that the instant company did not work as an executive or employee. The instant company did not work for the instant company from November 26, 2007 to June 25, 2008. However, although the instant company accounts for the payment of KRW 14,62,130 as wages to Plaintiff 00, it was only deposited in the net account of KRW 00.

5) Plaintiff 00 did not work as an executive officer or employee of the instant company, and did not receive money from the instant company under the pretext of salary, etc.

6) The Plaintiffs did not attend the general meeting of shareholders or the board of directors of the instant company, and there is no evidence to deem that the Plaintiffs entrusted the exercise of voting rights by the general meeting of shareholders to the network 000. The portion sealed in the name of Plaintiff 00,000 and the minutes of the general meeting of shareholders and the meeting minutes of the board of directors of the instant company appears to have been prepared by the network 000 and 000 employees of the instant company.

7) The company of this case testified in this court that “the company did not receive 000 shares as a violation of the Construction Business Act, the company’s establishment of the company of this case, and the net 000 was operated independently by the company of this case, and the plaintiffs did not participate in the management of the company of this case. The plaintiffs did not participate only once in the inaugural general meeting or the shareholders’ general meeting, and the directors registered as the directors did not participate once in the board of directors. At the time of incorporation or capital increase with capital increase, the company of this case testified to the effect that “the company of this case paid 00 shares acquisition price.” At the time of incorporation or capital increase with capital increase, the company of this case stated to the effect that the 000 shares were similar to the testimony of 00 shares held as the auditor of this case.”

D. Therefore, the Plaintiffs, which are difficult to be deemed to have practically exercised the right to the shares of the instant company, merely because they are merely shareholders in the form of lending the company’s name to the company 000, cannot be deemed to be oligopolistic shareholders with the secondary tax liability for national taxes in arrears by the instant company. Each of the dispositions of the instant case made on a different premise should be revoked in its entirety

3. Conclusion

Since the plaintiffs' claims of this case are well-grounded, all of them shall be accepted, and the costs of lawsuit shall be borne by the losing defendant. It is so decided as per Disposition.