Appropriateness of the disposition of designation of secondary tax liability

Since it is recognized that the Plaintiff paid shares as beneficial shareholders or received shares, the designation of the secondary tax liability for the Plaintiff is unlawful.

Article 39 (Secondary Liability for Tax Payment of Investor)

1. On May 23, 2005, the Defendant’s value-added tax of 211,700 won for the first period of value-added tax of 2000 for the Plaintiff on May 23, 2005, value-added tax of 13,634,790 won for the second period of value-added tax of 200, value-added tax of 8,375,570 won for the second year of 201, value-added tax of 18,13,450 won for the second year of 2001, value-added tax of 12,665,380 won for the second year of 202, value-added tax of 15,439,420 won for the second year of 202, value-added tax of 4,814,810 won for the second year of 203, value-added tax of 140 won for the corporate tax of 2004,48,398 won for the year of 201.

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

The order is as follows (However, May 28, 2005, the date of the disposition seems to be a clerical error).

1. Details of the disposition;

A. ○○○○○, Inc. (hereinafter “○○○”) established on December 14, 199 and operated a cargo transport arrangement business, and closed on June 10, 2004.

B. During the above business period, the shareholders of the non-party corporation were composed of the primary ○○○ (70%), high ○○○ (10%) as the wife of the two persons, Kim ○ (10%) as the main part of the business, and 10%) and the Plaintiff (10%) as the chief director, the senior ○○ was registered as the directors and the Plaintiff as the auditor.

C. On May 23, 2005, the Defendant imposed value added tax and corporate tax equivalent to shares shares on the Plaintiff on the ground that the Plaintiff, as an oligopolistic shareholder of the non-party corporation, falls under the secondary taxpayer under Article 39(1)2 of the Framework Act on National Taxes (hereinafter “instant disposition”).

2. Determination of legality of the instant disposition

A. The plaintiff's assertion

The plaintiff allowed the registration as a shareholder upon the request of the original ○○○○○, but there was no contribution or receipt of distribution, and there was no actual exercise of contribution shares by participating in the general meeting of shareholders or participating in the management.

(b) Related statutes;

【National Tax Basic Act

Article 39 (Secondary Tax Liability of Contributors)

(1) Where the property of a corporation (excluding a corporation whose stocks are listed on the Korea Stock Exchange) is insufficient to cover the national taxes, additional dues, and disposition fee for arrears that are imposed on or to be paid by the corporation, any person who falls under any of the following subparagraphs as of the date on which the liability for the payment of national taxes is established shall assume secondary tax liability for such shortage: Provided, That in the case of oligopolistic stockholders under subparagraph 2, the limit of the amount calculated by multiplying the amount obtained by dividing the shortage by the total number of issued stocks (excluding non-voting stocks; hereafter the same shall apply in this Article) or total amount of investment of the corporation by the total number of issued stocks (excluding non-voting stocks; hereafter the same shall apply in this Article) or

2. An oligopolistic stockholder who falls under any of the following items:

(a) A person who actually exercises the rights to 51/100 or more stocks or shares out of the total number of issued stocks or investments of the relevant corporation;

(b) An honorary chairperson, chairperson, president, vice president, senior managing director, managing director, director, or any other person who actually controls the management of the corporation, notwithstanding the title thereof;

(c) The spouse (including the person in de facto marital relations) of the persons prescribed in items (a) and (b) and the lineal ascendants and descendants sharing the same

(2) For the purpose of paragraph (1) 2, the term “excess shareholder” means a person who is a relative or has other special relations with a stockholder or partner with limited liability as prescribed by the Presidential Decree, and whose total sum of the shares or amount of investment is not less than 51/100 of the total number of shares issued or total amount of investment made by the juristic person concerned (hereinafter referred to as “excess shareholder”).

【Enforcement Decree of Framework Act on National Taxes

Article 20 (Scope of Relatives and Special Related Persons)

The term "relatives or other specially related persons prescribed by the Presidential Decree" in Article 39 (2) of the Act means those who fall under any of the following subparagraphs: Provided, That in case where a stockholder or partner with limited liability is a woman, excluding the cases of subparagraphs 9 through 13, the husband shall be subject to the relationship with the husband:

1. Paternal relatives within the sixth degree and the wife of any paternal blood relationship within the fourth degree;

2. Husbands and children of any paternal blood relationship within the third degree;

C. Determination

When a corporation’s stockholders are subject to secondary tax liability under Article 39(1)2 (a) of the Framework Act on National Taxes, it shall be an oligopolistic stockholder (where the total sum of stocks owned or total amount of investment by the relevant stockholders or persons in special relations is 51/100 or more of the total number of stocks issued or total amount of investment by the relevant corporation) and who actually exercises the rights to stocks or investment shares

In full view of Gap evidence 2, Gap evidence 1, 2, Gap evidence 7, Gap evidence 1, 2, 9-1 through 22, Gap evidence 10, Gap evidence 11-1, 2, and 12-1 through 3-3, and the whole purport of the arguments in the testimony of the original witness ○○○○, the plaintiff allowed the registration as a shareholder of the non-party corporation upon the request of the non-party corporation, but the plaintiff did not have paid the investment or received the share certificates at the time of incorporation. ② The plaintiff did not have participated in the general meeting of shareholders of the non-party corporation or participated in the management. ③ The plaintiff was working for the non-party corporation ○○○ at the time of incorporation, and the plaintiff was paid the above company from October 10, 200 to the non-party corporation under the name of the non-party corporation or the non-party corporation's share certificates, and thus, the plaintiff did not constitute the "the non-party corporation's share holder."

3. Conclusion

If so, the plaintiff's claim shall be accepted for the reasons and it is so decided as per Disposition.

Judges Cho Jae-chul

Judges Voluntary Fidelity

Judges Park Jong-ho