The actual share owner of a defaulted corporation shall be the plaintiff

It is sufficiently recognized that the Plaintiff is an oligopolistic shareholder as a person who actually exercises the right to the shares of this case using the name of a form shareholder in the register of shareholders and another person.

Article 39 of the Framework Act on National Taxes

2018Guhap2735

AA

BB Director of the Tax Office

April 4, 2019

May 16, 2019

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The Defendant, on August 23, 2016, designated the Plaintiff as the secondary taxpayer by CCC Co., Ltd. (hereinafter referred to as “CCC”) and revoked the imposition of corporate tax and value-added tax on the Plaintiff from 201X to 201X as the aggregate of the corporate tax and value-added tax, 480,430 won.

1. Details of the disposition;

A. From October 10, 201X to October 15, 201 X, the Defendant conducted an integrated investigation into corporate tax on delinquent corporations. As to the delinquent corporation’s receipt of false purchase tax invoices from DDD Co., Ltd. (hereinafter “DDD”) during the period from January 1, 200 X to June 30, 201 X, the Defendant notified the delinquent corporation of the total amount of value-added tax X case, 128,820, 200, 201 X case, 201 X case, 293, 742, 550 won, e.g., corporate tax amount for the year 201 X, 201 X, 42, and 50 won. However, the delinquent corporation did not pay the above amount.

B. The Defendant: (a) deemed that the Plaintiff is an oligopolistic shareholder who actually owns shares XX,600 shares of the delinquent corporation (referred to as the “instant shares”); and (b) designated the Plaintiff as the secondary taxpayer of the delinquent corporation on August 23, 201 X; and (c) notified the Plaintiff to pay KRW 498,430 (hereinafter referred to as the “instant disposition”).

C. The Plaintiff was dissatisfied with the instant disposition and filed an appeal with the Tax Tribunal on November 11, 201 X. However, the Tax Tribunal dismissed the said appeal on March 22, 201 X. The Plaintiff was served on December 20, 201 X.

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1, 2, and 3, and purport of the whole pleadings

A. The plaintiff's assertion

On July 7, 2000, 2000 shares issued by the Plaintiff to EE, the head of the Plaintiff, at the time of capital increase increase, not only lent KRW 00 million to X0 million, but also did not participate in the acquisition or acquisition of the shares of this case.

Although a formal stock transaction and securities transaction tax declaration under the EE name was made, all of them were made by the representative director FF, and the remaining shareholders, who were the working partner of FF and FF, made a false statement as the actual operator of the defaulted corporation.

There is no objective and direct material to determine the plaintiff as the oligopolistic shareholder of the delinquent corporation, and the disposition of this case based on this premise must be revoked in an unlawful manner.

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

1) The delinquent corporation was established on November 1, 2004 at the place of the domicile of the building owned by FFF, Gangnam-gu, Seoul, Devis-ro, XX ( XX Dong). From March 31, 2000 to December 3, 2010, the representative director registered as FF until the date of dissolution.

2) At the time of the incorporation of a delinquent corporation, the total number of issued shares was X000 (5000 won per share) and the capital was KRW X00,000,000, but the issued shares was increased by KRW 00,000 per share on July 7, 2000 ( KRW 5000 per share, X00, X000) and capital was increased by KRW 00,000.

3) The status of shareholders reported electronically to the National Tax Service (the Home Branch) is as follows, and both the Plaintiff, GG, FF, and HH are executives and employees retired from office in the II Industry Co., Ltd., and the JJ is the Plaintiff’s seat.

Name of shareholders

time of incorporation (200 X. 31 December 31, 200)

December 31, 2009

Jinay

GG

X,300 note (33%)

XX,300 Shares (83.25%)

on July 7, 2000. Paid-in capital increase

FF

X00 note 1 %)

X00 Shares (0.25%)

H H H

X,300 note (33%)

X,300 Shares (8.25%)

JJ

X,300 note (33%)

X,300 Shares (8.25%)

Consolidateds

X0,000 note

X0,000 note

4) On July 10, 200, FF submitted to the Defendant on August 10, 2000 the share sale and purchase contract (Evidence No. 5) and the securities transaction tax assessment report (Evidence No. 4) that the FF acquired x00,000 shares of a delinquent corporation from EE (the Plaintiff’s head on July 26, 200) (the Plaintiff’s head on July 26, 200) with the content that the FF acquired KRW 00,000,000 from EE (the Plaintiff’s head on July 26, 200). The current status of shareholders as set forth below is as follows.

Name of shareholders

Current shareholders on the list of shareholders;

Jinay

GG

X,300 Shares (8.25%)

Part of the Shares of this case

FF

X0,100 Shares (75.25%)

100 Shares excluding 100 Shares of this case

H H H

X,300 Shares (8.25%)

Part of the Shares of this case

JJ

X,300 Shares (8.25%)

Consolidateds

X0,000 note

5) On July 6, 2000, the Plaintiff deposited KRW 100,000,0000 from the paid-in capital increase to the company delinquent on July 7, 2000 to the account of the company delinquent in arrears over four occasions. In addition, the Plaintiff deposited KRW 10,000,000 to the account of the company delinquent in arrears over three times on March 30, 200.

[Ground of recognition] Facts without dispute, Gap evidence 1, Eul evidence 3 to 6, witness FF testimony, the purport of the whole pleadings

D. Determination

1) Article 39 of the Framework Act on National Taxes provides that "If the property of a corporation is insufficient to cover the national tax, additional dues, and disposition fee for arrears imposed on or to be paid by the corporation, any of the following persons as of the date on which the liability to pay national tax is established shall be subject to secondary tax liability for the shortage." Article 39 of the Framework Act on National Taxes provides that "a shareholder or one partner with limited liability and a person prescribed by Presidential Decree from among his/her related parties, who holds stocks or investments in excess of 50/100 of the total number of issued stocks or investments in the relevant corporation and

An oligopolistic shareholder as mentioned above does not necessarily have the actual result of exercising a shareholder’s right, and it is sufficient that the shareholder is in a position to exercise a shareholder’s right with respect to the shares held as of the date when the tax liability is established (see, e.g., Supreme Court Decision 2001Du5354, Jul. 8, 2003). The fact of ownership of such shares should be proved by the tax authority based on the data, such as the shareholder registry, the statement of transfer of shares, or the corporate register, etc. However, even if a shareholder appears to be a single shareholder in light of the above data, the actual shareholder cannot be deemed as a shareholder only in the name thereof, but it should be proved by the nominal owner who asserts that he is not a shareholder (see, e.g., Supreme Court Decision 2003Du1615, Jul. 9, 2004).

2) In full view of the following circumstances revealed by the facts acknowledged as above, Gap evidence Nos. 1, Eul evidence Nos. 8 through 15, witness FF's testimony and the purport of the whole pleading in accordance with the above legal principles, the plaintiff is sufficiently recognized as a person who actually exercises the rights to the shares of this case by using the name of form shareholders on the register of shareholders and EE, and is an oligopolistic shareholder as provided by Article 39 subparag. 2 of the Framework Act on National Taxes. Thus, the plaintiff's assertion that there was no title trust of the shares of this case cannot be accepted.

A) While the business operation of a delinquent corporation was conducted by a company or an employee related to the Plaintiff, the circumstances revealed that FF’s management of the delinquent corporation and specific exercise of shareholder rights can be found only exceptionally. As to this, the Plaintiff did not have any assertion contrary to some common sense, but did not have any explanation to understand.

① 체납법인의 주소지인 서울 강남구 KK동에는 체납법인의 사무실이 없고, 체납법인의 세금계산서 발행, 전자신고, 금융업무 등 체납법인의 실질 업무는 원고가 운영한 것으로 보이는 DDDD(원고의 동생인 LLL의 배우자인 MMM이 대표이사이고, 주소지는 경북 성주군 XX면 XX리 XXXX이다)의 사무실에서 모두 이루어졌다.

The plaintiff asserts that such act was conducted at the FF's request, but it is too rare that the defendant provided a long-term office and employees only at the request of the customer, and thus, the letter of good faith cannot be accepted.

② NN also reported as an employee of a delinquent corporation, entered and resolved accommodation in a dormitory of DDDD, and stated to the effect that only part of the TRIM instructed FF to issue and receive tax invoices for the delinquent corporation, and most of the TRD-related affairs were different from the Plaintiff’s instructions. NN, which can be seen as the Plaintiff’s employee, did not find any circumstances that the NN could make an unfavorable statement to the Plaintiff.

③ Three of the four credit cards issued in the name of a delinquent corporation is used by the Plaintiff and the Plaintiff’s partner, and its total amount reaches X1 million won. On the other hand, the credit card use cost of the remaining delinquent corporations used by FF is merely KRW 17 million. In the above recognition of the details of credit card use and the above recognition, the Plaintiff did not have any explanation about KRW 10 million of the deposit amount around March 30, 200, as seen earlier.

B) It is natural to view the Plaintiff’s deposit account of KRW 100,000,000 as the Plaintiff’s payment of new shares for capital increase claimed to EE, and there is no objective data to support the Plaintiff’s claim for the loan.

① As alleged by the Plaintiff, the Plaintiff’s assertion that FF transferred shares X0,000 shares owned by it to FF or GGG on July 10, 200 when the Plaintiff died, while EE, the head of the Plaintiff, who is the actual operator of the defaulted corporation, lends a large amount of money from the Plaintiff, may not be deemed to have any reason to participate in the capital increase with capital increase with a view to 75% of the equity ratio of the delinquent corporation. Moreover, the Plaintiff’s assertion that FF or GG transferred shares to FF or GG on July 10, 200 when EE died cannot be easily accepted.

② EE appears to have never performed any activity as a shareholder of a delinquent corporation, and rather, the circumstances where the current shareholder status of the electronic return by the National Tax Service and the shareholder status of the tax base return were different with respect to the above X0,000 shares are supported by the fact that the above X0,000 shares were nominal, contrary to the Plaintiff’s assertion.

③ Moreover, there is no evidence supporting that the Plaintiff lent the above amount to EE, and there is no reason to find out the details of interest on the above loan, or the circumstances that the Plaintiff collected part of the loan.

C) All shareholders and related persons of the delinquent corporation consistently stated that the Plaintiff was operating the delinquent corporation as a real shareholder. The Plaintiff’s assertion that all the aforementioned persons had interests in FF or the instant disposition, or that they made a false statement following the Defendant’s strong investigation cannot be accepted against the common sense.

① The FF consistently stated that the Plaintiff’s proposal was the representative director of the delinquent corporation, and that the EE acquired the x00 shares of the delinquent corporation, and that the EE died on July 26, 2000, the Plaintiff’s request and the bank’s request that the representative director be a major shareholder would consent to the nominal name of x0,000 shares issued in the name of EE. The FF’s statement is consistent with the statement of other shareholders, and its credibility is consistent with the terms and conditions of the stock sales contract for new shares issued with respect to the above new shares issued for capital increase.

② At the time of the establishment of a delinquent corporation in 200 X, HH, FF, and JJ consistently made a statement to the effect that: “The Plaintiff was operating a delinquent corporation as a de facto owner of the delinquent corporation.” Moreover, GG, FF, and HH are also the Plaintiff who was unaware of the JJ, the remaining shareholders of the delinquent corporation and the Plaintiff’s seat (EE, the head of the Plaintiff, is not related to the FF, etc.). Ultimately, all shareholders of the delinquent corporation were shareholders of the delinquent corporation according to the Plaintiff’s direction or recommendation, while there is no evidence to prove that the said shareholders exercised a substantial shareholder right of the delinquent corporation.

③ On November 201, 201, the certified tax accountant OO, a tax agent agent for delinquent corporations, was also found to be his office and received documents for the purpose of filing a revised return on delinquent corporations for tax purposes. At the time, the Plaintiff re-re-exploited the documents, and the FF at the time was the same as he was aware of the business of delinquent corporations.”

④ NN reported as an employee of the delinquent corporation also stated to the same effect as the statement made by shareholders of the pertinent delinquent corporation.

D) The e-mail (No. 14) sent by the Plaintiff to FF is the content that the Plaintiff could not send to FF if it is not the actual owner of the defaulted corporation. The Plaintiff’s assertion on this is also inconsistent with common sense.

① On October 23, 2010, the Plaintiff sent to FF an e-mail with the content that FF specifically instructs the tax office’s reply regarding the expected question.

② Among the above e-mail content, only the small amount of 'North packco's inventory on the account books issued only without inventory, 'the inventory of the product in 201 X billion and approximately x00 billion won in the current e-mail' are specific enough to be prepared if it is not a person who actually operates a corporation in arrears.

③ The Plaintiff asserts that FF gave advice at the time of tax investigation. However, FF did not have any reason to seek advice about the tax investigation of the delinquent corporation to the Plaintiff, who is not an accountant or a tax accountant, and the Plaintiff’s above assertion is not acceptable in light of the specific contents of the above e-mail.

E) The circumstances, etc. in which FF used a loan granted under the name of a delinquent corporation, are irrelevant to whether or not the actual shareholders of the instant shares are the shareholders, and thus does not interfere with the recognition of the Plaintiff’s title trust.

① According to the statement of evidence No. 4 and witness FF’s testimony, the FF obtained a loan from the bank in the name of the defaulted corporation, and the fact that the registration of the establishment of a mortgage over KRW XX billion is completed on December 11, 2000 with respect to the apartment owned by the PP (FF denial).

② Even though FF’s above act constitutes a breach of trust as the representative director of a delinquent corporation, it cannot be deemed that FF exercised the right as a shareholder of the instant shares. Furthermore, FF appears to have repaid the said loan in full, and it is sufficient that FF had sufficient collateral effect on the said apartment house, where the establishment registration of a neighboring mortgage on the said loan was completed.

③ Meanwhile, the Plaintiff asserted that FF unfairly induced the bankruptcy of DD by unfairly seizing the Plaintiff’s housing and factory, but there is no evidence to acknowledge it, as well as there is no connection with the determination of the actual shareholder of the instant shares.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.