Seocho 2012west 2305 (Law No. 1128, 2012)

The plaintiff constitutes oligopolistic shareholders and thus is the original disposition party imposing the secondary tax liability.

The Plaintiff did not report a change in shareholder status at the time of the return of corporate tax for 2010, and the return of securities transaction tax was made by reporting and paying securities transaction tax on April 1, 201 with a contract signed as of March 10, 2011, and the actual payment was received at this time. As of the date of establishment of the tax liability, the Plaintiff deemed the oligopolistic shareholder of the instant corporation as of December 31, 201 and the initial disposition was lawful.

Article 39 of the Framework Act on National Taxes

2012Guhap40155 Revocation of revocation of designation as a person liable for secondary tax payment

Park AA

Head of Geumcheon Tax Office

May 2, 2013

June 13, 2013

1. Of the instant lawsuit, the part of the claim for revocation of the disposition imposing additional 000 won and the part of the claim for revocation of value-added tax for a period exceeding 000 won shall be dismissed.

2. The plaintiff's remaining claims are dismissed.

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

On November 24, 2011, the Defendant: (a) designated the Plaintiff as the secondary taxpayer on December 24, 2011; and (b) revoked the disposition of imposition of value-added tax of KRW 000 (value-added tax + value-added tax of KRW 000 + additional tax of KRW 000); and (c) earned income tax of KRW 000 (income tax of KRW 000 + additional tax of KRW 000) in 2010.

1. Details of the disposition;

"A. BBE Co., Ltd. (hereinafter referred to as the "instant corporation") was a corporation engaged in the manufacture of communications equipment and the construction of communications equipment on April 11, 2005, and was ex officio closed on November 18, 2011. The Plaintiff was the representative director of the instant corporation from May 3, 2006 to December 1, 2010. (b). B. The Defendant determined that the Plaintiff constituted an oligopolistic shareholder (76%) holding 38,000 shares out of 50,000 shares issued by the instant corporation, and determined that the Plaintiff falls under the oligopolistic shareholder (76%) holding 38,000 shares out of 50,000 shares issued by the instant corporation, and the Plaintiff was designated as the secondary taxpayer for the tax payment of the amount in arrears of the instant corporation pursuant to Article 39(1) of the Framework Act on National Taxes (amended by Act No. 11124, Dec. 31, 2011; hereinafter the same).

C. The Plaintiff filed an objection and filed an appeal with the Tax Tribunal on August 28, 2012, and on March 10, 201, by the Tax Tribunal, the second tax liability designation and payment notification for the national tax for which the tax liability was established after March 10, 2011 was partly cited decision. Accordingly, the Defendant revoked the designation and payment notification for the remainder other than the value-added tax of 200 won and the wage and salary income tax of 2010 in December 2010. Meanwhile, as the OOtech and the contract of the instant corporation were terminated, the amount of KRW 00 was refunded according to the corporation’s request for correction, and accordingly, the amount of value-added tax for the Plaintiff related to the last two years of 200 won of the instant disposition was reduced to KRW 00 (value-added tax + additional tax of 000).

[Grounds for Recognition] The entry into the non-contentious facts, Gap 1, 2, 4, 10, 15, and Eul 1 through 3, 6, and 7, and the purport of the whole pleadings

2. Of the instant lawsuit, the part demanding revocation of the disposition imposing additional 000 won, and whether the part demanding revocation of value-added tax for a period exceeding KRW 000,000 is lawful

A. The additional dues or increased additional dues provided for in Articles 21 and 22 of the National Tax Collection Act are naturally arising under the provisions of a law without a final procedure by the tax authorities if national tax is not paid by the due date, and the amount thereof is determined and, if the tax amount imposed at the beginning is revoked or reduced, the additional dues are automatically revoked or reduced in response thereto, so notification of additional dues or increased additional dues is not deemed a disposition subject to appeal litigation (see, e.g., Supreme Court Decision 2000Du2013, Sept. 22, 2000). Therefore, the part of the claim for revocation of the imposition of additional dues 00 won (=the additional value-added tax 00 won + the additional tax 00 won for the second half year of 2010 + the additional tax 00 won for the wage and salary income tax 20

B. As seen in the developments leading up to the disposition, the part on the claim for revocation exceeding KRW 000 is unlawful because the designated amount of value-added tax for the second term of 2010 against the Plaintiff was reduced from KRW 000 to KRW 000, and the part on the claim for revocation exceeding KRW 000 is not relevant.

C. Therefore, in the following cases, only additional dues and the reduced portion as above, and the imposition of value-added tax of 000 won for the second period of 2010 and 000 won for earned income tax of 2010 are considered the instant disposition.

3. Whether the instant disposition is lawful

(a) Relevant statutes;

Attached Form. The entry in the relevant statutes is as follows.

B. The plaintiff's assertion

The Plaintiff borrowed 000 won from UO to pay in kind 6,000 shares on December 20, 201, and transferred 7,000 shares to EO and EO on the same day to EO and paid 000 won on March 10, 201. In other words, the Plaintiff held 38,000 shares out of 50,000 shares issued by the instant corporation (76% shares) and held 20,000 shares among them until the transfer on December 20, 201, and only owned 18,00 shares (36%) of the instant corporation as of the date on which the liability to pay national taxes was established, and thus, the instant disposition taken on the premise that the Plaintiff is an oligopolistic shareholder of the instant corporation is unlawful. Therefore, the instant disposition taken by the Plaintiff on the premise that the Plaintiff is an oligopolistic shareholder of the instant corporation is unlawful.

C. Determination

1) According to Article 98 of the Income Tax Act and Article 162 of the Enforcement Decree of the same Act, where a transfer is made in principle on the date when the price has been settled, and before the price has been settled, the transfer date is the date of transfer of stocks. Meanwhile, in order to take effect on payment in kind, other benefits provided by the debtor in lieu of the original performance must be realistic, and where a registration or enrollment is required, the registration or enrollment shall also be made (see, e.g., Supreme Court Decision 95Da1371, Sept. 15, 1995).

2) As of December 31, 2010, the date on which the instant corporation’s liability to pay national taxes in arrears was established, the Plaintiff is deemed an oligopolistic shareholder of the instant corporation.

Article 4, (5) 1, and 8 through 10, while (1) 1, the corporation in this case did not report the transfer of stocks to O, and O in its business year 2010, and (2) the plaintiff owns 38,000 shares of the corporation as of the end of 2010, and (3) the transfer of stocks was made on April 10, 201, and (1) the transfer of stocks was made on March 10, 201 by the plaintiff 10 as of March 10, 201, and (1) the transfer of stocks was made on May 4, 201, and (2) the transfer of stocks was made on May 1, 201, and (3) the transfer of stocks was made on March 10, 201, and (1) the transfer of stocks was made on May 10, 201, and (1) the transfer of stocks was made on March 10, 2011.

4. Conclusion

Then, the part of the claim to revoke the disposition of additional 00 won and the part of the claim to revoke the value-added tax for the second period of 2010 exceeding 000 won is unlawful, and the claim to revoke the value-added tax for the second period of 2010 is dismissed, and it is dismissed as it is without merit.