It is illegal to designate the secondary person liable for tax payment by deeming that the Plaintiff transferred shares.

In light of the fact that the construction contract, etc. was directly concluded as the representative and the construction price was received as the passbook in the name of the purchaser of stocks, it seems that the actual operation was made according to the stock and management transfer agreement with the Plaintiff even before changing the name of the representative on the document.

2014Guhap13775 Revocation of Disposition of Corporate Tax Imposition

LAA

○ Head of tax office

April 10, 2015

April 24, 2015

1. On June 12, 2013, the Defendant: (a) designated the Plaintiff as the secondary taxpayer of BB Construction Co., Ltd.; and (b) revoked each disposition imposing the Plaintiff’s KRW 1 value-added tax for 2010, KRW 2010, KRW 2010, KRW OO for value-added tax for 2010, KRW 2010, KRW OO for corporate tax for 2010, KRW 1 value-added tax for 2011, KRW 2011, KRW OO for value-added tax for 201, and corporate tax for 2011.

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

Cheong-gu Office

The same shall apply to the order.

1. Details of the disposition;

A. BB construction reported the value-added tax for the second period of 2010 and the first period of 2011 as non-performance, and the second period of 201 and 201 did not report corporate tax for each business year of 2011. After investigating the details of purchase and sale of BB construction, the Defendant notified the second period of 200 OO in 201, 1OOO in 201, 201, and 2OOOOO in 201, and determined and notified the corporate tax for the second period of 2010 and 2010 OOOO in 201.

B. On June 12, 2013, the Defendant: (a) deemed the Plaintiff as an oligopolistic shareholder who owns 90% shares of BB Construction; (b) deemed the Plaintiff as an oligopolistic shareholder; and (c) designated the Plaintiff as the secondary taxpayer for the amount equivalent to the amount stated in Annex 1’A(90%) in the Schedule of Designation of Secondary Tax Liability among the delinquent taxes of BB Construction; (b) designated the Plaintiff as the secondary taxpayer for the value-added Tax No. 10 in 2010; (c) OOO in the second year of 2010; (d) Value-Added Tax OO in the second year of 2010; (e) OOO in the second year of 2010; (e) OOO in the corporate tax for the business year of 2010; and (e) imposed and notified OO in the business year of 2011 (hereinafter “instant disposition”).

C. The Plaintiff appealed and filed an objection on July 26, 2013. However, the lower court rendered a decision of dismissal on August 23, 2013, and filed an appeal with the Tax Tribunal on November 22, 2013. However, the lower court rendered a decision of dismissal on April 24, 2014.

[Ground of recognition] Facts without dispute, Gap evidence 1, 9, Eul evidence 5, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff transferred 20,00 shares of BB Construction (the Plaintiff’s name 18,00 shares, the Plaintiff’s mother 2,000 shares) owned by the Plaintiff to D on June 23, 2010 due to difficulties in management of BB Construction on June 23, 2010, to BD, and thus, the instant disposition based on the premise that the Plaintiff is an oligopolistic shareholder of BB Construction is unlawful.

(b) Related statutes;

Attached Form 2 shall be as stated in the relevant statutes.

(c) Fact of recognition;

1) BB Construction was established on November 23, 2009 for the purpose of construction business, artificial fishery, etc., and the Plaintiff was appointed respectively by internal directors and regularCC.

2) The list of changes in stocks, etc. submitted by BB Construction at the time of filing a corporate tax return for the business year 2009 was written that the Plaintiff owned 18,000 shares in total and 2,000 shares issued, respectively.

3) On January 4, 2011, the Plaintiff resigned from office as a director of BB Construction, and on the same day, DD was appointed as an inside director. The representative of BB Construction’s business registration prepared a payment plan for the tax amount in arrears of BB Construction in April 26, 201, and issued a business registration certificate after paying the OO won out of the tax amount in arrears on the same day. The said business registration was revoked ex officio on September 30, 201.

4) On October 27, 2010 on behalf of BB construction, DD performed the above construction upon receiving a contract for Indian medicine construction [OOwon, additional tax set aside, OOOOwon, intermediate payment, and OOOOO (the time of completion of construction)] from EE contracts, and received the above construction cost from OOOO on October 27, 2010, and OOOOOO on November 10, 201, and 201. Meanwhile, BB construction received 2000,0000,0000,0000,0000,0000 won from the account opened in the name of BB construction.

[Ground of recognition] Facts without dispute, Gap evidence 5 through 8, 11, Eul evidence 3 and 4, witness D's testimony, the purport of the whole pleadings

D. Determination

1) In relation to whether a person falls under an oligopolistic shareholder as prescribed by Article 39(2) of the former Framework Act on National Taxes (amended by Act No. 11124, Dec. 31, 201); the fact of ownership of shares is sufficient to prove the fact by the tax authority based on the data, such as a list of shareholders, a statement of stock transfer status, or a list of corporate registers, etc.; Provided, That even in cases where a shareholder appears to be a single shareholder in light of the above data, if there are circumstances, such as the actual shareholder was stolen, or registered in a name other than the real shareholder’s name, the actual shareholder is not deemed to fall under the shareholder, but the nominal owner claiming that he/she is not a shareholder ought to prove (see, e.g., Supreme Court Decision 2003Du

2) In light of the following facts and circumstances, it is reasonable to view that the Plaintiff transferred all management rights, including the entire shares of BB Construction, to D around June 23, 2010, in light of the following facts and circumstances, which can be seen by integrating the purport of the entire pleadings in each of the aforementioned facts, evidence, and evidence as well as evidence Nos. 2 and 4.

① In a stock sales contract made between NA and Da, DOO is immediately paid the price for transfer to the Plaintiff and HaCC, and the Plaintiff and HaCC stipulate that D shall pay the price for transfer to the Plaintiff and HaCC, and all taxes and operating funds imposed from the date of signing this contract are borne by DD. Unlike the terms and conditions of the stock sales contract, D actually paid the purchase price to the Plaintiff and HaCC. However, in light of the fact that BB construction at the time did not have any financial situation due to managerial difficulties, there is room to deem that the Plaintiff was little value of shares and that the Plaintiff agreed to transfer shares without receiving the purchase price for shares. In addition, on the same ground, it can be deemed that BB construction’s shareholder registry or the statement on changes in the shares were written list of shareholders, or that capital gains tax or securities transaction tax was not reported and paid upon the transfer of shares.

② The representative of the tax invoice issued by BB Construction before the business registration is changed to D was written as the Plaintiff. From November 19, 2010 to November 19, 2010, there were details of deposit and withdrawal between the account in the name of BB Construction and the account in the name of the Plaintiff. However, it appears that the name of the corporate registry or the representative of business registration remains as the Plaintiff on the document, and it is difficult to readily conclude that the Plaintiff actually operated the BB Construction.

③ D is appointed as an internal director of BB Construction on January 4, 201. On April 22, 2011, after the name of the representative of BB Construction was registered as DD on April 22, 2011, the transaction of BB Construction was conducted in the name of DD, and D is also deemed to have made a tax payment plan to the effect that D would pay the delinquent amount of BB Construction to the principal, and it seems that D explicitly expresses the purport that D operates BB construction under its overall responsibility after completing registration as the representative of BB Construction.

④ In light of the fact that DD entered into a contract for BB construction as the representative of BB construction in 2010 and received the construction cost as a passbook in the name of DD, it seems that D actually was in charge of BB construction according to the stock and management transfer agreement with the Plaintiff even before changing the name of the representative on the document to D even before changing to D.

3) Therefore, the Plaintiff cannot be deemed to be an oligopolistic shareholder of BB Construction. Thus, the instant disposition taken on a different premise must be revoked on the ground that it is unlawful.

3. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is decided as per Disposition by admitting it.