Whether a secondary taxpayer is a taxpayer or not

Since the plaintiff et al. owned at least 50% of the total shares issued by the non-party corporation and actually exercised the rights to such shares, the disposition designated by the second taxpayer is unlawful.

Article 39 (Secondary Liability for Tax Payment of Contributors)

1. On April 25, 2006, the defendant revoked a notice of payment equivalent to the amount indicated in the separate sheet among the taxes listed in the separate sheet column against the plaintiff on April 25, 2006

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

The same shall apply to the order.

1. Details of the disposition;

A. ○○○○○○○, Inc. (hereinafter “○○○○”) was a corporation established for the purpose of manufacturing plastic products on September 2, 1999. Of each tax listed in the separate tax item column, the tax amount in the separate tax item was in arrears of KRW 123,542,30, total of the amount indicated in the tax item column in the separate tax item, and was closed on April 2, 2006.

B. From September 2001 to the closure of business, among the total 10,000 shares issued by the non-party corporation in the register of shareholders, the Plaintiff was registered as holding 5,00 shares in the register of shareholders and 2,500 shares in the Plaintiff’s head Kim Nam-○, respectively. The Plaintiff and Kim ○ was registered as a director in the register of shareholders.

C. On April 2006, the Defendant: (a) designated the Plaintiff as the secondary taxpayer pursuant to Article 39(1)2(a) of the Framework Act on National Taxes on the ground that the Plaintiff is an oligopolistic shareholder of the non-party corporation and is a person who actually exercises his/her shares; and (b) notified the Plaintiff of the payment of the amount indicated in the separate imposition column corresponding to the share share ratio (50%) among the delinquent taxes of the non-party corporation.

[Ground for Recognition] : Facts without dispute, Gap evidence 1, 6, Gap evidence 2-1 to 25, Eul evidence 1-1

2. Determination of legality of disposition

A. The plaintiff's assertion

The Plaintiff and the head of the Plaintiff Kim Jong-○, who was named as a shareholder by stealing the name of the Plaintiff’s husband Kim Jong-○, and was actually listed as a shareholder of the non-party corporation. However, the instant disposition imposing secondary tax liability on the Plaintiff on the premise that the Plaintiff is a substantial shareholder is unlawful.

(b) Related statutes;

【National Taxes Act

Article 39 (Secondary Liability for Tax Payment 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 tax, additional dues, and disposition fee for arrears that are imposed on or to be paid by the corporation, any person who falls under any of the following subparagraphs as of the date on which the liability to pay the national tax is established shall be subject to the secondary liability to pay such shortage: Provided, That in the case of an oligopolistic stockholder under subparagraph 2, the limit of the amount calculated by multiplying the amount obtained 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 (excluding non-voting stocks) or investment amount (in

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) The honorary chairperson, the chairperson, the president, the vice president, the executive director, the executive director, the director, or any other person who is merely a person who actually controls the management of the corporation;

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

(2) For the purpose of paragraph (1) 2, the term “excess 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 his stocks owned or investment is not less than 51/100 of the total number of stocks issued or total amount of investment made by the juristic person concerned (hereinafter referred to as the

【Enforcement Decree of the 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. Paternal relatives within the sixth degree and the wife of any paternal blood relationship within the fourth degree;

2. Husbands and children of any paternal blood relationship within the third degree;

C. Determination

Article 39 (1) 2 (a) of the Framework Act on National Taxes, if a stockholder of a corporation is subject to secondary tax liability, the sum of stocks owned or the total amount of investments made by the stockholder concerned and his relatives within a certain scope and other related persons shall be an oligopolistic stockholder whose total sum is not less than 51/100 of the total number of stocks issued or total amount of investments made by the corporation concerned and

Comprehensively taking account of the overall purport of arguments in Gap evidence 3, 8, evidence 7-1, evidence 9-1, evidence 9-1, and evidence 9-1 through 22, and witness testimony of the non-party corporation, the non-party corporation was established around September 2, 1999. At the time, 10,000 shares issued by the non-party corporation were listed in the register of shareholders as the ownership of 2,50 shares at 2,00 shares issued by the non-party corporation, and this ○○ was registered in the register of shareholders as the representative director, the former ○○ and the plaintiff were registered in the register of shareholders, and around August 16, 2001, it was acknowledged that the non-party ○○○ and the former ○○ were registered in the register of shareholders at the same time as the representative director, or that the non-party ○○ and the former ○○ were registered in the register of shareholders at the same time as the former ○○ was registered in the name of the plaintiff and its husband.

According to the above facts, it is difficult to view that the plaintiff or Kim ○○ owned more than 50% of the total issued shares of the non-party corporation and actually exercised the right to the shares, and there is no other evidence to acknowledge it, and thus, the disposition of this case is unlawful.

3. Conclusion

If so, the plaintiff's claim shall be accepted for the reasons and it is so decided as per Disposition.