Judgment criteria for secondary tax liability of investors

The testimony of the witness Kim* is difficult to believe, and the evidence submitted by the plaintiffs alone is insufficient to recognize that the plaintiffs are not in a position to exercise their rights as investors, and there is no other evidence to acknowledge it.

The contents of the judgment are the same as attachment.

2018Guhap65171 Revocation of Disposition of Tax Imposition

Ha*** foreign1

Head of Ansan Tax Office

on October 25, 2019

on October 30, 2019

1. All of the plaintiffs' claims are dismissed.

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

Cheong-gu Office

The Defendant’s imposition of value-added tax of KRW 33,52,570 for the first term of November 30, 2017 against Plaintiff R**, the first term of which was imposed on Plaintiff 1, 2016, KRW 2,87,960 for the first term of December 27, 2017, KRW 2,87,960 for the first term of December 27, 2017, and KRW 29,280 for the first term of January 2016 against Plaintiff *, respectively, is revoked.

1. Details of the disposition;

A. The fisheries partnership** (hereinafter referred to as the “instant corporation”) is a partnership corporation for the purpose of processing, selling, and distributing environment-friendly fishery products, and was in arrears with the value-added tax of KRW 63,137,600 (including additional tax), and the corporate tax of KRW 5,353,90 (including additional tax) for the year 2016.

B. Accordingly, the Defendant: 51% of the equity shares on the list of partners and the detailed statement of investment of the instant legal entity;

On November 30, 2017, Plaintiff * on December 27, 2017, Plaintiff ** on December 2016, 2016, the corporate tax of KRW 2,87,960 for the year 2016, and Plaintiff * on the same day * on the same day * 2,87,960 for the corporate tax of KRW 29,280,680 for the year 2016 and the corporate tax of KRW 2,482,940 for the year 2016 for the reason that Plaintiff * is regarded as an oligopolistic shareholder of the instant corporation as stipulated in Article 39 of the Framework Act on National Taxes.

C. On December 18, 2017, Plaintiff** was dissatisfied with the disposition of imposition of value-added tax on the first year of December 2016, 2017, and filed a tax appeal. However, the Tax Tribunal dismissed Plaintiff Y*’s request on March 9, 2018. Plaintiff 1* was dissatisfied with the disposition of imposition of value-added tax on January 16, 2018 and corporate tax on the first year of January 2016 and the second year of 2016. However, the Tax Tribunal dismissed all the above request on April 16, 2018.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 and 2 (including additional number; hereinafter the same shall apply), Eul evidence Nos. 5, the purport of the whole pleadings

2. Judgment on the defendant's main defense

A. The defendant's assertion

Plaintiff** filed a tax appeal only with respect to the imposition of value-added tax for the first year of 2016 among each of the dispositions in this case, and the imposition of corporate tax against Plaintiff ** among the lawsuits in this case must be dismissed as it did not go through the procedure of the previous trial.

B. Determination

In accordance with Articles 55 and 56(2) of the former Framework Act on National Taxes (amended by Act No. 14382, Dec. 20, 2016; hereinafter the same), the so-called tax litigation pursuant to Articles 55 and 56(2) of the former Framework Act on National Taxes (amended by Act No. 14382, Dec. 20, 2016; hereinafter the same) is excluded from the application of Article 18(3) of the Administrative Litigation Act, and even in cases where a disposition under the

The purpose is to respect the autonomy of the administrative authority and reduce the burden of the court by avoiding the burden of the court by avoiding the amount of the litigation case by providing an opportunity to correct the administrative disposition by re-reviewing the administrative disposition again. Therefore, in case where multiple persons bear the same obligation by the same administrative disposition, as long as one of them had an opportunity for the administrative authority to correct the administrative disposition by filing a legitimate administrative appeal, the remaining person shall undergo an administrative appeal.

In addition, administrative litigation can be initiated (see Supreme Court Decisions 87Nu704 delivered on February 23, 198, Supreme Court Decision 89Nu1414 delivered on April 13, 1990, and Supreme Court Decision 89Nu1414 delivered on April 13, 199).

According to the facts found in the above disposition, the plaintiffs are married couple and have a special relationship under Article 39 subparagraph 2 of the former Framework Act on National Taxes and Article 20 of the Enforcement Decree of the Framework Act on National Taxes. On the premise that the plaintiffs are oligopolistic shareholders of the corporation of this case, the defendant designated the secondary taxpayer and imposed corporate tax for the year 2016 under the premise that the plaintiffs fall under the oligopolistic shareholders of the corporation of this case, the plaintiff size*** provides the defendant with an opportunity to correct the disposition through legitimate pre-trial procedure, so long as the defendant has been given

Therefore, the defendant's main defense is without merit.

3. Whether each of the dispositions of this case is legitimate

A. Summary of the plaintiffs' assertion

1) Violation of statutes

The plaintiffs, around September 2013, Kim** would receive tax benefits and would be able to sell the corporation later. The plaintiffs paid the plaintiffs' seal impression documents and consulting services costs of KRW 4 million to Kim**, but they did not know that they were directors or investors of the corporation of this case. After that, around July 2015, they were transferred all the rights to the corporation of this case to Kim*, and then retired from office as directors of the corporation of this case on July 27, 2015, and received five million won around August 2015. The plaintiffs were not actually involved in the management of the corporation of this case because they did not fall under the oligopolistic shareholders under Article 39 subparagraph 2 of the former Framework Act on National Taxes, but they were found to be the secondary taxpayer of this case.

(ii) a deviation from or abuse of discretionary power;

Each of the instant dispositions imposing secondary tax liability on the Plaintiffs without considering whether the Plaintiffs actually exercised their rights to the amount of investment is against the minimum degree of infringement, the balance of legal interests and the principle of equality, and thus, the Defendant deviates from and abused its own discretion.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination on the assertion of violation of statutes

1) Relevant legal principles

Article 39 subparag. 2 of the former Framework Act on National Taxes provides that "a shareholder or one limited partner and a person prescribed by Presidential Decree 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 relevant corporation, and who actually exercises his/her rights thereto, shall be subject to secondary tax liability (hereinafter referred to as "excess shareholder" in this meaning). The above term does not necessarily require actual exercise of shareholders' rights, but is sufficient to exercise shareholders' rights with respect to the stocks held as of the date of establishment of tax liability (see, e.g., Supreme Court Decision 2001Du5354, Jul. 8, 2003). However, even if it appears in light of the above data, the tax authority can prove the ownership of stocks owned by an oligopolistic shareholder under the shareholder registry, specification of stock transfer or corporate register, etc., and if it appears that the same constitutes a shareholder under the name of the relevant corporation or under the name of the next shareholder, not a nominal shareholder (see, e.g. 2004).

2) Specific determination

The Plaintiffs, as married couple, are the Plaintiff’s husband and wife. As of the date of establishment of the corporate tax for the business year 2016 and the first year value-added tax liability for the corporation of this case at the time of establishment of the Plaintiff’s membership list and the details of investments in the corporation of this case as of the date of establishment of the Plaintiff’s corporate tax liability for the business year 2016 and the first year 2016, as of the date of the establishment of the Plaintiff’s membership list and the details of investments of this case**, and Plaintiff * as of the Plaintiff’s 44% equity shares of the corporation of this case, are as recognized

In full view of the overall purport of the statements and arguments by evidence Nos. 5 and 6, Plaintiff ** has retired from office as a director of the instant legal entity on July 27, 2015, and Kim** has taken office as a representative director, Plaintiff *** has received KRW 5 million from August 15, 2015. However, in light of the following circumstances that can be seen in full view of the overall purport of the arguments, the testimony by the witness Kim* is difficult to believe, and the evidence submitted by the Plaintiffs alone is insufficient to recognize that the Plaintiffs did not have a position to exercise their rights as an investor, and there is no other evidence to acknowledge this otherwise.

Even after the resignation of Plaintiff* from office on July 27, 2015, there was no change in the list of union members and the details of investment of the instant corporation.

The facts confirmation (Evidence No. 9) of the name Kim* is not accompanied by a certificate of the personal seal impression, so it is difficult to believe its contents, and even according to its contents, it is not confirmed that the plaintiffs were not involved or participated in the business of the legal entity of this case and that they could not exercise their rights as investors.

The plaintiffs, i.e., explaining the circumstances in which they become oligopolistic shareholders of the corporation in this case, argued that "the corporation in this case was created with tax benefits and subsequently sold money to the corporation." However, even according to the above assertion itself, it is difficult to view the plaintiffs as having stolen the names of investors.

㉣ 증인 김**은 이 사건 법인이 김**에게 양도되었고 그 이후 원고들이 이 사건 법인의 운영에 관여할 수 없었다고 증언하면서도 자신은 원고들에게 김**을 소개하여 주었을 뿐이라고 하며 김**이 이 사건 법인을 인수한 이후 이 사건 법인의 조합원명부가 변동되지 않은 이유에 관하여는 명확하게 설명하지 못하여 그 증언을 믿기 어렵다.

3) Sub-decisions

Therefore, the Plaintiffs constitute oligopolistic stockholders of the instant corporation as of the date when the instant corporation’s liability to pay value-added taxes and corporate tax is established, and thus, the Plaintiffs shall have secondary liability to pay taxes pursuant to Article 39 subparag. 2 of the former Framework

D. Determination on the assertion of deviation or abuse of discretionary power

In light of the form and text of the provision of Article 39 of the former Framework Act on National Taxes, each of the dispositions of this case based on the above provision is a binding act. Therefore, the plaintiffs' assertion based on the premise that each of the dispositions of this case is a discretionary act is without merit.

4. Conclusion

Therefore, the plaintiffs' claims of this case are without merit, and they are dismissed. It is so decided as per Disposition by the assent of all participating Justices.