Designation of the secondary taxpayer, the actual representative

If it is apparent whether the taxable object is subject to taxation can only be accurately examined, even if its defect is serious, it cannot be seen that it would be apparent that it would be apparent, and thus, it cannot be deemed that the illegal taxation disposition that misleads the fact of taxation is void as a matter of course.

Article 39 of the Framework Act on National Taxes

Incheon District Court 2018Guhap52420 Such disposition shall be revoked.

O KimO

The Director of Incheon Tax Office

October 18, 2018

November 08, 2018

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

It is confirmed that each disposition that the defendant designated the plaintiff as the second taxpayer of the OO Unemployment Co., Ltd. is invalid.

1. Details of the disposition;

The name of the shareholder of the Plaintiff, Co., Ltd. (hereinafter referred to as the “instant company”)

The register is registered as a shareholder holding 10,000 shares (10% shares) and is registered as a representative director in the corporate register of the company in this case.

The Defendant deemed the Plaintiff to be an oligopolistic shareholder of the instant company and notified the Plaintiff of the payment of the delinquent tax, etc. of the instant company, as indicated in the attached disposition statement, by designating the Plaintiff as the secondary taxpayer of the instant company (hereinafter “each disposition of this case”).

[Ground of recognition] Gap evidence Nos. 3, 4, 6, 7, Eul evidence Nos. 1, 2, and 3, the purport of the whole pleadings

2. Whether the disposition is invalidated;

A. The plaintiff's assertion

The plaintiff is merely a shareholder in the form of the corporation of this case who lent the name of the shareholder to O, and

Since EO is the actual shareholder of the instant company, each of the instant dispositions taken by the Plaintiff deeming that the Plaintiff is the actual shareholder of the instant company is null and void as a matter of course.

(b) Related statutes;

Basic Act

Article 39 (Secondary Liability to Pay Taxes by Investor)

Where the property of a corporation is insufficient to appropriate 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 national tax liability is established shall assume secondary tax liability for the shortage: Provided, That in cases of an oligopolistic stockholder under subparagraph 2, the limit shall be the amount calculated by multiplying the shortage by the total number of outstanding stocks (excluding non-voting stocks; hereafter the same shall apply in this Article) of the corporation or the total amount of investment, the number of stocks (excluding non-voting stocks; hereafter the same shall apply in this Article) or

2. A shareholder or one limited partner and a person prescribed by Presidential Decree from among his/her related parties, whose total amount of stocks held or investments exceeds 50/100 of the total number of outstanding stocks or investments of the juristic person concerned and who actually exercise the rights thereto (this shall apply).

under the oligopolistic stockholder d)

C. Determination

1) In order for a taxation disposition to be null and void as a matter of course, the mere fact that the defect in the disposition is unlawful is insufficient, and it is objectively obvious that the defect violates important laws and regulations, and in determining whether the defect is significant and apparent, it is necessary to reasonably consider the purpose, meaning, function, etc. of the laws and regulations, which serve as the basis for the taxation disposition, and also to reasonably consider the specificity of the specific case itself (see, e.g., Supreme Court Decision 2010Du24326, May 9, 2012). In addition, in a case where there are objective circumstances that make it possible to believe that a certain legal relation or fact which is not subject to taxation is subject to taxation and that it is subject to taxation, if it is possible to accurately examine the facts, it cannot be deemed that it is apparent even if the defect is serious, and thus, it cannot be deemed that the taxation disposition that misleads the facts of taxation is null and void as a matter of course (see, e.g., Supreme Court Decision 2011Du272730).

Meanwhile, determination as to whether a person is an oligopolistic shareholder of a corporation under secondary tax liability ought to be made based on the cause of the majority shareholder group. Specifically, even if there is no fact involved in the management of the company, it cannot be determined that the said person is not an oligopolistic shareholder. The fact of ownership of shares is sufficient to prove it through the data, such as the shareholder registry, specifications of stock movement, or corporate register. However, even in cases where a shareholder appears to be a single shareholder in light of the above data, the real name alone cannot be deemed as a shareholder if there are circumstances, such as where the shareholder was stolen or registered under a name other than the de facto ownership, but the nominal shareholder who asserts that he is not a shareholder (see, e.g., Supreme Court Decision 2003Du1615, Jul. 9, 2004; 2007Da51505, Mar. 11, 2010). In addition, it cannot be deemed that a person who actually exercises a shareholder’s right to exercise a shareholder’s right is not necessarily required to exercise a shareholder right.

2) In the instant case, the Plaintiff was registered as a shareholder holding 100% of the shares of the instant company in the register of shareholders from the time of the incorporation of the instant company, and registered as a representative director in the register of shareholders, and even if the Plaintiff merely lent the name of a shareholder to O as alleged by the Plaintiff, it is difficult to deem that such circumstance was apparent since it could only be revealed that it was true, and it is difficult to see that the Defendant clearly knew of such circumstances at the time of each disposition of the instant case. In light of the above, each disposition of the instant case is significant and obvious, and thus, it cannot be deemed null and void.

3. Conclusion

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