The propriety of the assertion that it was not an actual shareholder on the disposition of oligopolistic shareholder’s secondary tax liability designation

In full view of the fact that not only the deposit account in the name of the Plaintiff was used in transactions based on false tax invoices but also the employee of the non-party company at the time of the tax investigation stated that the female employee transferred the funds collected from the customer to the Plaintiff, it cannot be readily concluded that the Plaintiff was merely an oligopolistic shareholder in the form of the non-party company, or that the non-party company

Article 39 of the Framework Act on National Taxes

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

Cheong-gu Office

The Defendant imposed a value-added tax of 1,546,60 won on the Plaintiff on October 20, 2005, value-added tax of 2003, value-added tax of 200, value-added tax of 32,384,300 won for 204, value-added tax of 32,383,320 won for 204, and 673,610 won for 203,610 won for 204, and 5,187,460 won for 203,583,640 won for 203,583,640 won for 203, corporate tax of 203, and corporate tax of 746,160 won for 204, and imposition disposition of 497,060 won for 206,90 won for 205, 207, 206, 2005.

1. Details of the disposition;

(a) Related Acts and subordinate statutes;

According to Article 39 (1) of the Framework Act on National Taxes, where the property of a corporation is insufficient to cover the national taxes, etc. imposed on or to be paid by the corporation, a person (Article 2 (a)) who actually exercises a right to 51/100 or more of the total number of outstanding stocks or total amount of investment of the relevant corporation among oligopolistic stockholders, or a director, the president or other person who actually controls the operation of the corporation (Article 2 (b)) regardless of the title thereof shall be subject to secondary tax liability for the amount equivalent to the holding ratio of the relevant oligopolistic

B. The plaintiff's status

(1) ○○○○○○○ (hereinafter “Nonindicted Company”) is a company established on October 9, 2002 for the purpose of wholesale and retail business, such as computer, etc.

(2) Under the corporate register of the non-party company, the plaintiff was appointed as the representative director of the non-party company on October 9, 2002 and was registered as being in its position until now. Under the statement of changes in stocks submitted to the tax office of the non-party company, 57% of the shares of the non-party company from around that time to the time of the disposition of this case.

C. Disposition of this case

(1) In the course of conducting a tax investigation on the non-party company from around April 25, 2005 to May 20, the Defendant issued false sales, purchase tax invoices by ○○○, an employee of the non-party company, and issued the non-party company, following the re-calculation procedure, imposed the non-party company the value-added tax (including the additional tax), 203 and 204 for the period from January 2003 to February 2004, and imposed the corporate tax (including the additional tax) for the period from 2006, and imposed the additional tax for the period from 2007 to 202.

(2) The Defendant confirmed that the non-party company did not have any property to pay the above value-added tax and corporate tax, and issued the instant disposition to designate the Plaintiff as the secondary taxpayer of the non-party company and notify the Plaintiff of the tax amount equivalent to the Plaintiff’s share ratio (57%) out of the above tax amount pursuant to the provisions of the Framework Act on National Taxes.

[Ground of Recognition] Facts without dispute, Gap 1-4 evidence, Eul 1-10 evidence (including each number)

2. Judgment on the main defense and main defense

A. The plaintiff's assertion

The plaintiff is not a substantial shareholder of the non-party company, and there is no fact that ○○ was working as a representative director, and only ○○ was a representative director and a shareholder of the above company for his own business. The defendant is well aware of the above circumstances. Although the plaintiff is well aware that it constitutes an oligopolistic shareholder under Article 39(1)202 of the Framework Act on National Taxes, the plaintiff was imposed the disposition of this case on the premise that the plaintiff is an oligopolistic shareholder under Article 39(1)2 of the Framework Act on National Taxes. Therefore, the disposition of this case is unlawful as well as the disposition of this case is null and void as it is significant and apparent

B. Determination on the main defense of this case

The defendant asserts that the lawsuit of this case is unlawful, since the plaintiff filed the lawsuit of this case without going through the procedure of pre-assessment under the Framework Act on National Taxes. However, the plaintiff does not seek the cancellation of the disposition of this case, but seek the confirmation of invalidity as a matter of course, and in such a case, the pre-assessment procedure under

C. Judgment on the merits

(1) The legislative purpose of the secondary tax liability system for oligopolistic shareholders is to prevent the oligopolistic shareholders from abusing their corporate personality and achieve substantial equality in taxation, in light of the current status of the unlisted corporations operated as small-scale closed companies in the Republic of Korea, since the oligopolistic shareholders, who are a substantial operator in charge of the management of the company, revert the company's income to themselves, and losses are likely to go beyond the company, and thereby, to achieve substantial equality in taxation. Accordingly, Article 39(1)2 of the Framework Act on National Taxes does not recognize the secondary tax liability for oligopolistic shareholders, even if they are oligopolistic shareholders, if they are not able to control the company entirely to the extent that their corporate personality can be revoked.

(2) Whether it constitutes an oligopolistic stockholder under item (a) or not shall be determined depending on whether a group of stocks owned by the majority of the corporation in question actually exercises the rights to 51/100 or more of the total amount of issued stocks owned by the majority of the corporation, and whether it constitutes an oligopolistic stockholder under item (b) or not shall be determined based on whether the said oligopolistic stockholder actually exercises the rights to the stocks

(3) In this case, according to the evidence evidence Nos. 6, it can be acknowledged that ○○○ was the actual manager or founder of the non-party company. However, according to the evidence Nos. 7-1, 11-1 and 2, according to each of the above false tax invoices, the Plaintiff was registered as the representative director of the non-party company, and the Plaintiff was holding 57% of the shares of the non-party company under the statement of shareholder change situation. ② ○○○ was allowed not only to participate in the overall management of the company but also in the business or processing sales, but also it cannot be concluded that the Plaintiff did not participate in the management or was merely a mere in the form of the company even though the ○○○○○ was involved in the operation of the non-party company (the above false tax invoice may be deemed to have made a false statement that the Plaintiff actually operated the company.)

Furthermore, even if the actual manager of the non-party company is ○○○ and the plaintiff is merely a person registered as a shareholder in the form of the non-party company, in light of the above circumstances, the defendant, who is the tax authority, should be deemed to have been the objective situation to mislead the plaintiff as the second taxpayer. Thus, even if there is a defect in the disposition in the disposition in this case, it cannot be deemed that the defect is objectively apparent. Accordingly, the disposition in this case cannot be deemed as null and void as a mother.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.