2006 disposition of revocation of imposition of value-added tax, etc.

1. OO;

2. The place of auction;

3. △△△△

[Defendant-Appellee] Defendant 1

Busan Head of the tax office

Litigation Performers xx▽▽▽, etc.

April 27, 2006

May 25, 2006

1. The defendant's taxation disposition against the plaintiffs as stated in the attached Form 1 of April 22, 2005 shall be revoked.

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

The same shall apply to the order.

1. Details of the disposition;

The following facts are not disputed between the parties, or acknowledged by considering the whole purport of the arguments in the descriptions of Gap evidence 1-2 through 8, 11, and 1-2.

A. A. Around January 8, 2001, Plaintiff 1 was established as the representative director, and Plaintiff 1 was reported to the Defendant in 2001, and Plaintiff 1 was 50% of the total number of issued and outstanding shares of the above company, and Plaintiff 2 and Plaintiff 3, who is his parent, hold 20% of the total number of issued and outstanding shares of the above company, respectively.

B. However, the company of this case closed its business on December 31, 2003 when it failed to pay 15,102,350 won including value-added tax for the second period of February 2001. The defendant, on April 22, 2005, deemed the plaintiffs to be the secondary taxpayer of the company of this case and pursuant to the ratio of shares of the plaintiffs as stated in the separate disposition.

In 201, a total of 13,591,590 won including value added tax (including additional tax) was imposed on them (hereinafter referred to as "instant disposition").

2. Whether the disposition is lawful;

A. The plaintiffs' assertion

(1) Plaintiffs 2 and 3 merely lent only the name in the process of establishing the instant company for the business partnership with the Korea Communications Department, and were registered as a director or auditor at the time of its establishment, but did not have any participation in the company’s business at all, nor did they share the same livelihood with Plaintiff 1.

(2) On October 2001, Plaintiff 1 gave up all the shares owned by the Plaintiff and transferred Nonparty 1’s representative director to Nonparty 1, who was dismissed from the representative director, and thereafter did not participate in the management of the instant company.

(3) Therefore, the Plaintiff’s disposition was unlawful, deeming otherwise, even if it does not constitute an oligopolistic shareholder with secondary tax liability.

B. Relevant statutes

Attached Form 2. The entry is as shown in Annex 2.

C. Facts

The following facts are acknowledged in addition to the above evidence Nos. 10, 12, 14, 12, 12, 13, and 4-1, 2, 7, 18-1 through 20, 22, and 25 of the evidence Nos. 1, 10, 12, 14, 13, and 4-1, 2, 18-1, 22, and 25 of the evidence

(1) Plaintiff 2 and 3 entered as a director or auditor on the registry at the time of the establishment of the instant company, but Plaintiff 1 completed the registration of resignation by entering Nonparty 1, Nonparty 2, and Nonparty 3 as a director or auditor of the said company on July 7, 2001. At the time, Plaintiff 1 agreed with Nonparty 1, Nonparty 2, and Nonparty 3 to own 45% of the instant company’s shares, 30%, Nonparty 1, Nonparty 2, and Nonparty 3 owned 10%, but did not complete the share acquisition agreement or transfer procedure.

(2) Around March 3, 2001, the instant company commenced a resale business related to the instant communications after completing registration as a specific telecommunications business operator, but around August of the same year, due to typhoons, the number of participants’ complaints recruited due to the instability of the Korea artificial intelligence network hub was increased, and thus, the nationwide heads of branch offices have expressed complaints in the operation policy of the headquarters. Accordingly, the nationwide president demanded Plaintiff 1’s withdrawal and collective withdrawal, and the Plaintiff 1 submitted a letter of resignation and a letter of delegation related to the waiver of stocks, etc. by disclosing the intent to resign the representative director and to waive all of the shares he/she owns.

(3) Accordingly, around January 25, 2002, the registration of the resignation of the representative director of Plaintiff 1 and the registration of the appointment of the representative director of Nonparty 1 was completed, and on February 1, 2002, the registration certificate of a specific communications business operator who registered Nonparty 1 as the representative was issued as of February 1, 2002. The Plaintiff 1, who was removed from the instant company’s hand, was a communications company similar to the instant company on April 3, 2002, established the “△△△△△”, which was a “stock company,” and its representative director, started its business again.

(4) Meanwhile, the non-party 1 transferred the company of this case from the plaintiff 1 to the representative director, who did not properly manage the company of this case even thereafter, and the non-party 4's introduction around February 2002 at the end of the consultation with the operating staff of this case, and the non-party 1 transferred the company's management right to the non-party 5, who was the wife of the above non-party 4, and the non-party 5, who was the representative director around August 6 of the same year, transferred the company's shares to the non-party 5, who was the wife of the above non-party 4. On the other hand, in the confirmation letter of stock ownership relationship made around March 2003, 200, the non-party 200, 31% of the company, and 5% of the shares of this case to the non-party 5.

D. Determination

(1) Article 39(1)2 of the Framework Act on National Taxes provides that, if the property of a corporation is insufficient to cover the national taxes, additional dues, and disposition fee for arrears imposed on or to be paid by the corporation, it shall be an oligopolistic stockholder as of the date on which the liability to pay national taxes is established, ① a person who actually exercises the rights to 51/10 or more of the total number of stocks issued or total amount invested by the corporation concerned, ② a person who actually controls the operation of the corporation regardless of the name of honorary chairperson, president, president, vice president, managing director, managing director, or any other titles thereof, ③ a spouse of the person prescribed in the above Article 39(1)2 and a person who is the lineal ascendant or descendant living together with him shall be liable to pay taxes for

(2) As above, in order for the title holder to be subject to the secondary tax liability, his shares or equity shares should be practically exercised. Accordingly, the following circumstances acknowledged by the above paragraphs (c) and (1) above or by the evidence as seen above are met, namely, Plaintiff 1’s establishment and operation of the instant company around October 201, when the business was avoided, given up the shares at the request of the heads of branch offices across the country, and transferred the company to the company in its management, and Nonparty 1, who was transferred the company’s management by Plaintiff 1, transferred the company to the company in February 2002, after the fact that the Plaintiff did not actually participate in the process, and the Plaintiff 1 created and operated a company similar to the instant company in April 202, and Plaintiff 2 and 3 did not actually exercise the rights to the shares of the Plaintiff company in this case after the date of establishment of the oligopolistic shareholder registry, and the Plaintiffs were deemed not to have been subject to the duty to pay taxes on the shares of the Plaintiff 1 in this case.

(3) Therefore, the instant disposition that was otherwise deemed to exist should be revoked in an unlawful manner.

3. Conclusion

Therefore, the plaintiffs' claim of this case is reasonable, and it is so decided as per Disposition by admitting it.

The presiding judge, the number of judges;

Judge Choi Jin-jin

Judges Kim Jong-chul