Cho-2016-China-2406 (Law No. 18, 2016)

Whether the plaintiffs constitute an oligopolistic shareholder with the secondaryaa tax liability for the national tax of this case

In determining the establishment background of the corporation of this case, the method of disposal of shares transfer proceeds by the plaintiff and related persons, and the fact that the dividend income tax by the non-party ○○○○○ is paid on a deposit basis, etc., it is reasonable to deem that the plaintiffs do not constitute an oligopolistic shareholder with the secondary tax liability for the national tax of this case, and thus, the plaintiffs cannot be deemed an oligopolistic shareholder with the secondary tax liability.

Article 39 (Secondary Liability to Pay Taxes by Investor)

Incheon District Court-2016-Gu Partnership-54262 (Law No. 30, 2018)

△△△ and four others

O Head of tax office

2018.03.09

2018.030

1. The value-added tax, corporate tax, and each corporate tax described in attached Form 1, which the Defendant rendered against the Plaintiffs on November 26, 2015.

The imposition of comprehensive real estate holding tax shall be revoked.

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

1. Details of the disposition;

A. The BB Shipping Co., Ltd. (hereinafter referred to as “BB Shipping”) closed on March 14, 2016, when Kimpo-si was engaged in the business of manufacturing sand and gravel for construction in △-si, Kimpo-si.

나. 2012. 8. 16.경부터 폐업 당시까지 BB해운의 사원은 원고들과 ●●●, ◇◇◇ 총 7명이었는데, 그 지분 중 ●●●가 35%, ●●●의 배우자인 ◇◇◇이 10%, 원고 △△△는 25%, 원고 ○○○는 15%, 원고 ▲▲▲, XXX, YYY는 각 5%를 소유하고 있었다.

C. BB Shipping failed to pay KRW 00,000,000,000 and KRW 000,000,000,000 for the second period of value-added tax in 2013; KRW 00,00,000,000 for the first period of value-added tax in 2014; KRW 00,000,000 for the second period of value-added tax in 2012; KRW 00,000,000 for the corporate tax in 2012; and KRW 00,000,000 for the comprehensive real estate tax in 200,000 for the first period of tax payment (hereinafter “instant national tax”); and the Defendant, as a specially related person, constitutes an oligopolistic shareholder’s share in 2015,000 for the first period of tax payment on November 5, 2015; and the Defendant, as a taxpayer, on the ground that the Plaintiffs had an oligopolistic shareholder’s shares at the time of the national tax payment.

D. The Plaintiffs, who were dissatisfied with the instant disposition, filed an objection against the Defendant on February 24, 2016, but were dismissed on March 24, 2016, and filed an appeal with the Director of the Tax Tribunal on June 27, 2016, but was dismissed on August 18, 2016.

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1, 12, 13, 14, 27 (including each number; hereinafter the same shall apply) and the purport of the whole pleadings

2. Determination on the legitimacy of the disposition

A. Summary of the plaintiffs' assertion

Since the plaintiffs were merely entrusted with the name of BB shipping equity from △△△△△△△, and did not actually exercise the rights as a member of the company. Thus, the disposition of this case based on the premise that the plaintiffs are oligopolistic shareholders shall be revoked in an unlawful manner.

B. Determination

1) Article 39 of the former Framework Act on National Taxes (amended by Act No. 12848, Dec. 23, 2014) provides that "where the property of a corporation is insufficient to cover national taxes, additional dues, and disposition fee for arrears imposed or payable by the corporation, with the property of the corporation (excluding a corporation listed in the securities market), any of the following persons as of the date on which the liability to pay national taxes is established shall assume secondary tax liability for the shortage: Provided, That in cases of oligopolistic stockholders under subparagraph 2, such shortage shall be limited to the amount calculated by multiplying the amount calculated by dividing the shortage by the total number of issued stocks or total investment amount of the corporation by the total number of issued stocks or total investment amount of the corporation, by the number of stocks or investment amount actually exercised by the oligopolistic stockholders." Article 39 of the former Framework Act on National Taxes (amended by Act No. 11845, May 28, 2013) provides that "shareholders or one limited partner and his/her related parties, as prescribed by Presidential Decree, whose total number of stocks held or investment amount is substantially exercised."

In order to constitute “exercise of rights to stocks in excess of 50/100” under the above Act, even if the actual exercise of shareholder rights does not have the record of exercising shareholder rights, it must be in the position to exercise shareholder rights to the stocks held as of the date of establishment of tax liability. Therefore, in a case where there is no possibility of exercising shareholder rights as at the time of establishment of tax liability, a secondary tax liability under the above provision shall not be held (see Supreme Court Decision 2011Du9287, Dec. 26, 2012). Meanwhile, even in a case where a single shareholder appears in light of the above data, if the title holder uses the shareholder’s name, or is listed in a name other than the de facto ownership, the title holder who asserts that he/she is not a shareholder ought to prove (see Supreme Court Decision 2008Du983, Sept. 11, 2008).

2) According to the statement of changes in stocks, etc. of BB Shipping, as seen earlier, the Plaintiffs held a total of 55% of the shares in BB Shipping at the time when the Plaintiff’s liability to pay the national tax of this case was established. However, in light of the following circumstances that can be seen by comprehensively taking into account the overall purport of the arguments and the overall purport of the arguments, it is reasonable to deem that the Plaintiffs do not constitute an oligopolistic shareholder with the secondary liability to pay the national tax of this case, inasmuch as part of the Plaintiffs were registered as an executive of BB Shipping, and thus, the Plaintiffs do not constitute a person who actually exercises the right to the shares in BB Shipping as the trustee of BB Shipping, and thus, the Plaintiffs cannot be deemed an oligopolistic shareholder with the secondary liability to pay the national tax of this case

A) Along with the name of BB BB aggregate created and operated from around 1983, BB public service established in around 1989, BB BB, and BBC established in the Republic of Korea, all of BB public service and BBC were merged into BB in around 2012. In the end, the said companies were established and operated by the same person by gathering B B B aggregate, which was operated by △△△△△△△△ Group.

B) The common shareholders or equity right holders of BB public, BB marine transportation, and BBAC are limited to Do prospective △△△, and both JJ and FF of BBC’s representative director of BBB and BBC are located in the wife of Do△△△, and all the plaintiffs are relatives of Do△△△△△, and all the plaintiffs are related to △△○○○○○.

다) 원고들 중 일부가 BB해운의 임원으로 등재되기도 하였으나, 나아가 BB해운의 의사결정 등 경영에 참여하였다고 볼 만한 정황을 찾을 수 없고, 특히 원고 ▲▲▲은 BB공영 설립 당시 만 21세의 사회초년생으로, 출자하여 회사를 설립하거나 인수할 만한 능력이 있었다고 보이지 않는다. 한편, BB공영이 설립된 1989. 3. 29. 당시 시행된 구 상법(1995. 12. 29. 법률 제5053호로 개정되기 전의 것) 제288조에 의하면, 주식회사의 설립에는 7인 이상의 발기인이 요구되었던바, ●●●는 개인사업체이던 BB골재에서 나아가 주식회사인 BB공영을 설립하기 위하여 배우자인 ◇◇◇을 포함하여 자신과 친족관계에 있던 원고들을 명의상 발기인으로 하여 BB공영을 설립 하였을 가능성이 크다.

D) The public service of BB did not have distributed the profits to the Plaintiffs before the merger into BB Shipping after its establishment, and BB Shipping paid interim dividends to the Plaintiffs according to the resolution of the △△△ and the JJ at the meeting of the board of directors present, but was immediately recovered to use them for capital increase. It is difficult to deem that the Plaintiffs participated in the management of BB Shipping or gained profits from the ownership of shares. Furthermore, △△△ and ○○○○○○○○ made a substitute payment of the said interim dividends, which is in accord with the empirical rule to deem that the dividend was actually not the said Plaintiffs but was attributed to the corporation operated by the said Plaintiffs.

E) According to Article 14(1) and (2) of the Aggregate Extraction Act, Article 19(1)4 of the Enforcement Decree of the Aggregate Extraction Act, and Article 19(2) and attached Table 1 of the Enforcement Decree of the Aggregate Extraction Act, in order to continue the business of collecting marine aggregate conducted by BB Shipping, it is necessary to maintain at least KRW 1,500,000 of the capital in order to continue the business of collecting marine aggregate. BB Shipping has been 1,50,000,000 of the capital through interim dividend and capital increase with capital increase. The aforementioned interim dividend and capital increase with capital increase is persuasive by the Plaintiff’s assertion that the aforementioned interim dividend and capital increase with capital increase are made to facilitate the merger between BB, BB public and BBAC and meet the criteria for registration and qualification maintenance of BBB Shipping’s business of collecting marine aggregate.

F) The JJ and ○○○ opened a new account to be paid for stock transfer after transferring the shares of BB to the BB public. This is compared to the case of △△△△△△△△, which was paid for stock transfer from the previous transaction. In addition, most of the money deposited into the said account was left out in a short period. Examining the process of opening and depositing the said account, it is merely a series of acts to have the appearance of payment for stock transfer, and the said money is likely to have not been actually attributed to JJ and ○○○.

G) Some of the plaintiffs received money as wages from BB shipping and BB public service; however, in light of the fact that the plaintiffsY did not receive wages from BB public service as well as BB shipping, regardless of the plaintiffs, YY paid the above earned income regardless of the shares or equity shares in BB and B B, △△△△△△△△△, and the plaintiffs received money much more than the total amount of money received from BB shipping and BB public service as wages or short-term loans, retirement allowances, etc., it is not deemed that the plaintiffs received money as a compensation for investments.

3. Conclusion

Therefore, the plaintiffs' claims of this case are justified, and all of them are accepted, and it is so decided as per Disposition.