Whether the secondary tax liability designation disposition is legitimate, deeming it as an oligopolistic stockholder

The shareholders of the non-party company, including the plaintiff, are those of relatives under the Framework Act on National Taxes who hold no less than 51/100 of the total issued and outstanding shares, and are deemed to meet the requirements of oligopolistic shareholders. The plaintiff's assertion that the defects are not clear in appearance.

Article 39 (Secondary Liability for Tax Payment of Investor)

Article 20 of the Enforcement Decree of the Framework Act on National Taxes and scope of specially related persons

1. The plaintiff's claim is dismissed.

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

The defendant imposed on the plaintiff on July 19, 2005 the value-added tax of 3,734,790 won for the first term of 2004, the corporate tax of 1,035,890 won for the second term of 204, the value-added tax of 6,651,570 won for the second term of 2004, the value-added tax of 4,569,820 won for the second term of 2004, the corporate tax of 497,100, 1,48,960 for the second term of 204, the value-added tax of 1,971,710 for the first term of 205, the amount imposed on the plaintiff for the second term of 205, the amount imposed on the plaintiff for the second term of 202 value-added tax for the second term of 2,239,297, the amount imposed on the plaintiff for the second term of 205, 381,2981.

1. Details of the disposition;

가. 원고는 2001. 4. 21.부터 2005. 12. 31.까지 주식회사 ◯◯◯◯◯(이하 소외회사라 한다)의 대표이사로 근무하면서 주주명부상 소외회사 발행주식 총수의 30%(9,000주)를, 같은 기간 중 원고의 동생인 송◯◯이 발행주식 총수의 20%(6,000주)를, 원고의 동생 송◯◯의 남편 이◯◯가 발행주식 총수의 25%(7,500주)를 각 소유하여 이들이 보유하고 있는 주식의 합계는 75%(22,500주)이다.

B. On September 30, 2004, the Defendant collected value-added tax of KRW 14,167,30 in total and KRW 75,610,980 in total and KRW 36,13,30 in total from September 30, 2005 and KRW 36,461,760 in total and KRW 5 other than value-added tax of KRW 6,461,760 in total and KRW 36,13,30 in total from September 30, 2005, the Defendant designated the Plaintiff as the secondary taxpayer pursuant to Article 39 of the Framework Act on National Taxes, and imposed and notified the value-added tax and corporate tax as stated in the claim

[Ground of Recognition] Facts without dispute, Gap evidence 1, Gap evidence 3-1 to 8, Gap evidence 4-1 to 7, Gap evidence 5, and Eul evidence 3

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The plaintiff is a nominal representative director who is not a real shareholder of the non-party company, and the defendant is merely a nominal representative director, and the defendant considers the plaintiff as an oligopolistic shareholder under the Framework Act on National Taxes only on the basis of each entry of the certified transcript of corporate register, and thus the disposition of this case is null and void

(b) Related statutes;

[The Framework Act on National Taxes (amended by Act No. 7930 of April 28, 2006; hereinafter the same)

Article 39 (Secondary Liability for Tax Payment 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 payment of national taxes is established shall be subject to the secondary liability for tax payment of such shortage: Provided, That in the case of an oligopolistic stockholder under subparagraph 2, it shall not exceed the amount calculated by multiplying the amount calculated by dividing the shortage by the total number of stocks issued (excluding non-voting stocks; hereafter in this Article the same shall apply)

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

(a) A person who exercises a substantial right over the stocks or investment shares in excess of 51/100 of the total issued stocks or total 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 under items (a) and (b) and the lineal ascendants and descendants sharing their living

(2) For the purpose of paragraph (1) 2, the term “excess stockholder” 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 the total sum of his stocks owned or investment is not less than 51/100 of the total number of stocks issued or total amount of investment made by the juristic person concerned (hereinafter referred to as the

[Enforcement Decree of Framework Act on National Taxes]

The term “relatives and other persons having special relations as 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 a partner with limited liability is a woman, the relationship with her husband shall be excluded, except in the cases of subparagraphs 9 through 13:

1. Any paternal blood relationship within the six degrees and the wife of any paternal blood relationship within the four degrees;

4. Any paternal blood relationship within the second degrees of the wife and her spouse;

C. Determination

(1) In order for a taxation disposition to be null and void as a matter of course, it is not sufficient to say that there is an unlawful reason, and its defect must be significant and obvious. In determining whether the defect is significant and obvious, it is necessary to consider the purpose, meaning, function, etc. of the laws and regulations which form the basis for the taxation in question as a objectiveological and to reasonably consider the specificity of the specific case itself at the same time. In addition, if there are objective circumstances that could lead to misunderstanding that it is subject to taxation due to certain legal relations or factual relations which are not subject to taxation, which are not subject to taxation, and it is possible to clarify only after an accurate investigation of the factual relations, it cannot be deemed as clear even if the defect is serious, and therefore, it cannot be deemed as a legitimate invalidation.

(2) Meanwhile, whether it constitutes an oligopolistic shareholder under Article 39(1)2 of the Framework Act on National Taxes shall be determined by whether it is a member of a group of stocks owned by the majority. Specifically, even if there is no fact involved in the management of the company, it cannot be determined that it is not an oligopolistic shareholder. The fact of ownership of stocks is proven by the tax authority through the data such as the register of shareholders, the statement of stock movement or the register of corporate register, etc. However, even if it appears to be a single shareholder in light of the above data, if there are circumstances, such as that the actual shareholder was stolen or registered in a name other than the real shareholder, the nominal shareholder cannot be deemed to be a shareholder, but this should be proved by the nominal shareholder who asserts that he is not a shareholder (see, e.g., Supreme Court Decision 2003Du1615, Jul.

(3) However, in the case of this case, the plaintiff is holding 30% of the shares of the non-party company in the documents related to the list of shareholders of the non-party company, as seen earlier. The shareholders of the non-party company including the plaintiff are those related to the non-party company under Article 20 of the Enforcement Decree of the Framework Act on National Taxes, whose shares are at least 51% of the total number of shares issued. Thus, inasmuch as the non-party company is delinquent in value-added tax, the defendant who is the tax authority shall be deemed to fall under the case of objective circumstances that could mislead the plaintiff as the second taxpayer. Thus, even if the plaintiff lent its name to the non-party company and registered in the register of shareholders as holding the shares of the non-party company, it cannot be deemed that the defect in each disposition of this case is apparent.

3. Conclusion

Thus, the plaintiff's claim is dismissed for lack of reason.