Whether an investor's secondary liability for tax payment is appropriate (defensive dismissal)

When it is recognized that there is no real exercise of the authority of the shareholder registry or director, etc. prepared voluntarily without the consent of the person concerned, the secondary tax liability of the investor is not imposed.

Article 39 (Secondary Liability to Pay Taxes by Investor)

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

The records of this case and the judgment of the court below and the grounds of appeal were examined. However, the grounds of appeal by the appellant are not included in the grounds provided for in each subparagraph of Article 4(1) of the Act on Special Cases Concerning the Procedure for Appeal, and the appeal is dismissed pursuant to Article 5 of the same Act. It is so decided as per Disposition by the assent

Daejeon High Court 2006Nu1829 ( July 25, 2007)

1. Revocation of a judgment of the first instance;

2. On May 19, 2005, the Defendant imposed the traffic tax of KRW 33,430,490 on the Plaintiff on the second half year of 2003, the traffic tax of KRW 21,801,030 on November 2003, and the traffic tax of KRW 404,946,080 on December 2003, respectively.

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

The judgment of the first instance shall be revoked. The defendant shall revoke the disposition of imposition of value-added tax of 33,430,490 won on May 19, 2005 and traffic tax of 21,801,030 won on November 2003 and traffic tax of 404,946,080 won on December 2003, respectively.

1. Details of the disposition;

A. On June 5, 2003, 200, ○○○○○○○ (hereinafter referred to as “○○○○○”) was a corporation with its capital of 50 million won, closed down business on March 15, 2005, ○○○○○-ri, 000, and registered its establishment on August 18, 2003 (before the seat of ○○○○○○-do, 0-ri, 00, 00, 00, 00, 00, 000, 00, 00,000, 00,000 won and 0,000 won and 0,000 won and 0,000 won and 0,000 won and 0,00,000 won and 0,000 won and 0,000 won and 20,000 won and 30,000,000 won and 20,000.

나. 그러자 피고는, 원고가 김○○(원고의 부) 및 김○○(김○○의 동생으로서 원고의 삼촌)와 함께 특수관계인들로서 ○○○○○의 주식 100%(원고 15%, 김○○ 70%, 김○○ 15%)를 소유하고 있어 ○○○○○의 이 사건 체납국세에 대하여 국세기본법(2006. 4. 28. 법률 제7930호로 개정되기 전의 것, 이하 '국세기본법' 이라 한다) 제39조 소정의 제2차 납세의무자에 한다는 이유로, 2005. 5. 19. 원고에 대하여 소유주식의 지분비율에 따라 2003년 2기분 부가가치세 33,430,490원(222,869,990원⨉15%, 10원 미만 버림, 이하 같다), 2003년 11월분 교통세 21,801,030원(145,340,230원⨉15%), 2003년 12월분 교통세 404,946,080원(2,699,640,590원⨉15%)의 부과처분(이하 '이 사건 부과처분'이라 한다)을 하였다.

[Reasons for Recognition] Uncontentious Facts, entry of Gap evidence 1 to 3, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) The actual establishment and operation of ○○○○ was 00,000, and the Plaintiff was registered as a director of ○○○○○○○○ only in the form of lending the name on the request of Kim○○, which was not the representative director of ○○○○○, and did not acquire the shares of ○○○○○○○○○○○○. Nevertheless, Kim○ arbitrarily registered the Plaintiff as a shareholder in the shareholder registry of ○○○○○○○○○○○○○○○○○○○○○○○○○, and the Plaintiff is merely a shareholder in the form of ○○○○○○○○○○○○○○○. Accordingly, the instant disposition imposing secondary

(2) ○○○○○○○ has produced ○○ upon consignment pursuant to the production consignment agreement concluded with ○○○○○○ or a stock company. As such, the instant delinquent national taxes ought to be imposed on the instant ○○○○○○○ or the instant ○○○○○. Therefore, the instant disposition imposing secondary tax on the Plaintiff on the ground of the instant delinquent local taxes, is unlawful, since ○○○ does not have a duty to pay the instant delinquent national taxes.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

The instant disposition is based on the premise that the Plaintiff is an oligopolistic shareholder under Article 39(1), 2, and 30 of the Framework Act on National Taxes. As such, whether the Plaintiff constitutes an oligopolistic shareholder under Article 39(1)2 and (2) of the Framework Act on National Taxes was determined based on whether the Plaintiff was an oligopolistic shareholder under the same title as the ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○.

5. Conclusion

Therefore, the plaintiff's claim seeking the revocation of the disposition of this case shall be accepted on the grounds of its reasoning, and since the judgment of the court of first instance is unfair on the grounds of its conclusion, it is so decided as per Disposition by accepting the plaintiff's appeal and accepting the plaintiff's claim.

Relevant statutes

(1) Framework Act on National Taxes (amended by Act No. 7930 of April 28, 2006)

Article 39 (Secondary Tax Liability 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 the corporation has imposed on or is to pay, any person who falls under any of the following subparagraphs as of the date on which the liability to pay national taxes is established shall assume secondary tax liability for such shortage: Provided, That in the case of an oligopolistic stockholder under subparagraph 2, the limit shall be the amount calculated by multiplying the amount calculated by dividing the shortage by the total number of stocks issued (excluding non-voting stocks; hereafter the same shall apply in this Article) or total amount of investment of the corporation by the number of stocks owned by the oligopolistic stockholder (excluding non-voting stocks) or investments (in the case of

1. General partners;

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 president, president, president, vice president, senior managing director, managing director, director, or a person who actually controls the management of a corporation, notwithstanding the name thereof;

(c) The spouse (including the person in de facto marital relations) of the persons prescribed in items (a) and (b) and the lineal ascendants and descendants sharing the same

(2) For the purpose of paragraph (1) 2, the term “major 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 stocks owned or investment is 51/100 or more of the total number of stocks issued or investment of the juristic person

【Enforcement Decree of Framework Act on National Taxes

Article 20 (Scope of Relatives and Those Who Have Special Relations)

For the purpose of Article 39 (2) of the Act, the term “relatives or other person having a special relation as prescribed by the Presidential Decree” means a person falling under any of the following subparagraphs: Provided, That in case where a stockholder or partner with limited liability is a woman, excluding the cases of subparagraphs 9 through 13, the husband shall be subject

1. The wife of any paternal blood relationship within the sixth degree and the wife of any paternal blood relationship within the fourth degree;