Supreme Court Decision 2009Du7578 ( October 25, 2010)

Seoul High Court 2008Nu20569 (209.04.09)

Whether only the name of the shareholder was leased to the shareholder or not.

The fact that the company has participated in the management of the company or has not received dividends as wages or shareholders, the trade name, the location of the headquarters and the representative director have been changed after the closure of the company, etc. is judged to be merely an oligopolistic shareholder in the name

The contents of the decision shall be the same as attached.

1. Revocation of a judgment of the first instance;

2. On July 23, 2007, the Defendant: (a) designated the Plaintiffs as secondary taxpayers of △△ Logistics Co., Ltd.; and (b) revoked the disposition imposing corporate tax of KRW 18,881,340 for each year 2006; (c) value-added tax of KRW 8,950,260 for each year 2006; and (d) additional dues of KRW 566,430 for each year; (b) increased additional dues of KRW 226,570 for each year; and (c) increased additional dues of KRW 268,50 for the value-added tax.

3. All costs of the lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. Circumstances of the disposition;

A. The company was established on November 10, 200 as the purpose of the " trucking transport brokerage business, shipping storage business, etc." and the total number of issued and outstanding shares is 20,000,100,000,000, and the shareholders organization as of December 31, 2006 is as follows. However, the non-party company's 65,581,000, 206, 30, 30,729,000, 206, 30,000,000, 20,000,000,000,000,000, 20,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,000,00,000.

C. The Plaintiffs filed a request for review on October 30, 2007 with respect to the instant disposition, but the Commissioner of the National Tax Service dismissed the said claim on December 3, 2007.

[Reasons for Recognition]

Facts without dispute, Gap evidence 1 through 4 (including paper numbers), Eul evidence 1, 2 and 6, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiffs' assertion

The plaintiffs were formally registered as shareholders, directors, auditors, etc. necessary for the establishment of a non-party company by stealing the names under thisA, and they did not exercise rights to the shares, and did not participate in the management of the company as directors or auditors. In particular, after reporting the closure of the business, the plaintiffs did not know about the change of the trade name from △ Transportation to △ Logistics, and the change of the representative director, etc., in spite of the fact that the plaintiffs do not fall under the oligopolistic shareholders under Article 39 (1) 2 of the Framework Act on National Taxes, the disposition of this case by the defendant that deemed the plaintiffs to fall under the oligopolistic shareholders is unlawful.

(b) relevant statutes;

It is as shown in the attached Form.

(c)a recognition;

1) 이AA는 1987년부터 △△운송, ◇◇운, ♤♤운 주식회사, ▽▽운수, ♧♧운수 등 개인 운수회사의 설립과 폐업을 수차례 거듭하며 화물운송사업을 하였는데, 2003. 11. 10. □□운수를 설립하면서 별다른 직업이 없던 형인 원고 이BB를 주주 겸 이사로, ♧♧운수의 명의상 대표이사였던 조카인 원고 이CC을 주주 겸 감사로, 딸 이DD를 주주 겸 대표이사로 각 등재하였다가 이DD에게 결격사유가 있어 주주 겸 대표이사를 이EE로 변경하였다. 원고들은 당시 □□운수의 임원으로만 등재되어 있을 뿐 회사 경영에 참여하거나, 임금 또는 주주로서의 배당금을 받지 아니하였다.

2) ThisA independently operated △△ Transportation, while making a report on the discontinuance of November 29, 2005 on the discontinuance of the business on the part of the operator, and then temporarily locked with a corporate seal imprint. The representative director Lee E sent the △△△ and the representative director at around April 2006 along with a seal imprint and a certificate of seal imprint and a certificate of seal imprint and a certificate of seal imprint to KimF et al.

3) Accordingly, KimF, etc. arbitrarily prepared the minutes of the general meeting of shareholders and the resolution of the board of directors using the seal imprint of the EE, etc., and changed the trade name of the △ Transportation to the △ Logistics, and completed the business registration again on May 8, 2006 after the head office and the representative director changed the name, and closed the business ex officio on February 14, 2007.

4) However, the plaintiffs and thisA may know at all the above circumstances, and only this time they want to operate the EE again on or around November 2006, they became aware of the fact that the △ Transportation had already exceeded another person.

[Ground of Recognition] Facts without dispute, the evidence mentioned above, Gap evidence Nos. 5 through 7, Gap evidence No. 8 through 13 (including each number), Gap evidence No. 14 through 17, Gap evidence No. 18, 19 (including each number), Gap evidence No. 20 through 22, Eul evidence No. 3 through 5, Eul evidence No. 7 through 13, Eul evidence No. 16, Eul evidence No. 16, and the purport of the whole pleadings and arguments of this case before remand.

D. Determination

First, we examine whether the plaintiffs are oligopolistic shareholders of the non-party company.

1) Article 39(1)2 of the former Framework Act on National Taxes (amended by Act No. 8139, Dec. 30, 2006; hereinafter “the Act”) provides that where the assets of an unlisted corporation are imposed on or to be paid to the corporation for the national taxes, additional dues, and disposition fee for arrears, the secondary tax liability is imposed on the shortage, and Article 39(1)2 of the Enforcement Decree of the Framework Act on National Taxes (amended by Presidential Decree No. 2038, Feb. 18, 2010; hereinafter “the Act”) provides that the person who actually exercises the rights to 51/100 or more of the total number of outstanding stocks of the relevant corporation among oligopolistic stockholders of the relevant corporation as of the date on which the national tax liability is established (a) and Article 39(2) provides that “a person who is a relative of a person with a special relationship prescribed by Presidential Decree under Article 20(1)2 of the Act (amended by Presidential Decree No. 2038, Feb. 18, 2019).

However, the issue of whether it constitutes an oligopolistic shareholder under the above provision shall be determined by whether it is a member of a group holding stocks of the majority, and 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 should be proved by the tax authority based on the data such as the list of shareholders, specifications of stock movement, or list 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 under a name other than the real shareholder’s name, the actual shareholder cannot be deemed to fall under the shareholder merely in such name (see Supreme Court Decision 2003Du1615, Jul. 9, 2004

2) Examining the facts acknowledged above in light of the above legal principles, this company was virtually controlled and operated while the company was actually in possession of the shares of △ Transportation, and the plaintiffs are merely shareholders in the form of lending only the name of the shareholders, who are not the actual owners of the above shares, and there was no room for the company to exercise the rights to the above shares because the company's trade name, the head office and the representative director are not aware of the fact that the business was resumed in the business year 2006 after the closure of △ Transportation. Thus, it is reasonable to deem that this company does not fall under the second taxpayer under Article 39 (1) 2 (a) of the Act.

3) Therefore, since the disposition of this case based on the premise that the plaintiffs are in the status of the secondary taxpayer of the non-party company, the plaintiffs' assertion is with merit.

3.In conclusion

Therefore, the plaintiffs' claims of this case are accepted in its entirety due to the reasons, and the judgment of the court of first instance, which has different conclusions, is unfair, and it is so decided as per Disposition by the cancellation of this decision.