District Court-2015-Gu Partnership-1040 (2016.08.30)

The burden of proving the fact that the oligopolistic shareholder is a shareholder in the form of the oligopolistic shareholder is a claimant.

An oligopolistic stockholder shall have the burden of proving the fact that he is a nominal shareholder, regardless of his position in the company, is sufficient to exercise the shareholder's rights.

2016Nu6747. Disposition of revocation of the imposition of value-added tax

AA

BB Director of the Tax Office

Suwon District Court Decision 2015Guhap1040 Decided August 30, 2016

December 20, 2016

January 17, 2017

1. Revocation of a judgment of the first instance;

2. The plaintiff's claim is dismissed.

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

1. Purport of claim

The Defendant’s imposition of value-added tax of KRW 5,282,430, KRW 9,234,030, and value-added tax of KRW 4,449,720 for the year 2013 against the Plaintiff on July 16, 2014 is revoked.

2. Purport of appeal

The same shall apply to the order.

1. Details of the disposition, the plaintiff's assertion, and relevant statutes;

The court's explanation on this part is the same as the corresponding part of the judgment of the court of first instance, and thus, this part is cited by Article 8 (2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

2. Whether the instant disposition is lawful

A. The exercise of rights to shares in excess of 50/100 under Article 39 of the former Framework Act on National Taxes does not necessarily require that the actual exercise of shareholders’ rights should be achieved. At least if a person is in a position to exercise shareholders’ rights with respect to the shares held as of the date on which a tax liability is established (see Supreme Court Decision 2011Du9287, Dec. 26, 2012). If a real shareholder is a shareholder, whether a director or representative director of the relevant corporation has performed his/her duties does not have any influence in determining whether a person is an oligopolistic shareholder (see Supreme Court Decision 94Nu7997, Jan. 20, 195). Meanwhile, the fact of ownership of the shares is proved by data, such as the list of shareholders, the statement of stock transfer, or the register of shareholders. However, even in cases where a shareholder appears to be a single shareholder in light of the above data, the actual shareholder can only be deemed as a shareholder under the name of the nominal shareholder, but it does not constitute a shareholder (see Supreme Court Decision 20014.

B. According to the following circumstances, each of the evidence and evidence set forth above, and evidence Nos. 5, 6, 7, 1, and 2, the Plaintiff’s position to exercise shareholder rights as of the date of establishment of the instant value-added tax liability, and even if the Plaintiff did not participate in the management of the instant company in detail, the Plaintiff constitutes a person who is liable for secondary tax liability as a oligopolistic shareholder under Article 39 subparag. 2 of the former Framework Act on National Taxes, insofar as the presumption is presumed to be a beneficial shareholder and the presumption is not dissatisfed, and the testimony of Gap3, 9, 13-1, 13-2, and 1, 13-1, 2, and 3-1, 13-1, 3-2, and D testimony of the first instance court witnessCC, and DD are insufficient to recognize that the Plaintiff is merely a

1) According to the statement on the state of stock fluctuation of the instant company, the Plaintiff filed a report that the instant company continues to hold 10,000 shares, which are 10% of the total issued shares of the instant company, since its incorporation on October 19, 2012 until its closure on June 27, 2014, and all of the corporate register, business registration certificate, livestock product processing business license, and business registration certificate of the instant company, are written as the representative director.

2) In light of the fact that the Plaintiff was paid a total of KRW 24,00,000 from the instant company in 2013 when working as a factory in the instant company, the Plaintiff, who was practically responsible for the operation of the instant company, is deemed to have been engaged in the instant company’s business to a considerable extent, and was in a position to exercise substantive rights. The Plaintiff’s reason that the Plaintiff retired in the middle of the instant company and worked in the other company is an oligopolistic shareholder does not interfere with the Plaintiff’s recognition.

3) The Plaintiff asserted that it is only a representative director in the form of the instant company, and there is no proof as to the developments leading up to which 100% of the shares of the instant company were acquired in full, as well as the source of the fund, as well as the fact that the person is the beneficial shareholder of the instant company.

3. Conclusion

Thus, the plaintiff's claim of this case shall be dismissed as it is without merit, and the judgment of the court of first instance shall be dismissed as it is unfair to conclude otherwise, and the plaintiff's claim shall be dismissed.