Cho High 2015 Jeon 645 (No. 12, 2015)

Inasmuch as it falls under oligopolistic shareholders on the shareholder registry, it constitutes the secondary taxpayer.

The tax authority should be deemed to have proved compliance if it submitted data that can be seen as an oligopolistic shareholder by the shareholder registry, etc., so it is recognized that the Plaintiff owned 100% of the shares of the company of this case as of the date when the liability to pay delinquent tax of the company of this case was established. Thus, it constitutes an oligopolistic shareholder under Article 39 subparagraph 2 of the Framework

Disposition of revocation of Disposition of Imposition of Value-Added Tax, etc. in Cheongju District Court 2015Guhap771

00

00. Head of tax office

oly 201.21

2016.02.04

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The Defendant’s imposition of KRW 6,79,970 on July 21, 2014 against the Plaintiff, the imposition of KRW 23,372,950 on June 30, 2014, the imposition of KRW 23,372,950 on the second-term value-added tax on June 30, 2014, the imposition of KRW 282,630 on the earned income of December 21, 2013, and the imposition of KRW 60,797,850 on the second-term value-added tax on the date of November 17, 2014, shall be revoked, respectively.

1. Details of the disposition;

A. On November 5, 2012, a stock company 00 Roster Co., Ltd. (hereinafter “instant company”) was established and engaged in transportation business, and closed on December 31, 2013.

B. At the time of the closure of business, the instant company was in arrears with KRW 6,779,970, KRW 23,372,950, KRW 282,630, KRW 282,630, and KRW 60,797,850, KRW 2013, KRW 91,233,340, which was added value-added tax for the second period in December 2013.

C. The Defendant confirmed that the Plaintiff was registered as an oligopolistic shareholder of the instant company as of the date on which the liability to pay delinquent tax of the instant company was established, and that the Plaintiff designated the Plaintiff as the secondary taxpayer of the instant company pursuant to Article 39 subparag. 2 of the Framework Act on National Taxes and imposed and notified the Plaintiff the value-added tax and the labor income tax as follows (hereinafter “instant disposition”).

· omitted;

D. The Plaintiff dissatisfied with the instant disposition and filed an appeal with the Director of the Tax Tribunal on December 26, 2014, but the said claim was dismissed on May 12, 2015.

[Ground of recognition] Facts without dispute, entry of Gap evidence 2, 4, 7, and 10, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Until March 2013, the Plaintiff served as the representative director of the instant company while holding the instant company’s shares, but thereafter, decided to sell the instant company, and transferred all documents necessary for the instant company’s sale, including the stock transfer contract, to 00. Thereafter, the representative director of the instant company was changed to Kim 00 on May 7, 2013. Since the said Kim 00 did not report the transfer of shares and the change of shares, the Plaintiff remains as a shareholder on the date of establishment of the liability to pay delinquent tax of the instant company due to the failure to report the transfer of shares, etc., and thus, the Plaintiff was not a substantial shareholder of the instant company prior to the date of establishment of the liability to pay delinquent tax of the instant company. Accordingly, the Defendant’s disposition based on this premise was unlawful.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) In order to impose the secondary tax liability on a stockholder of a corporation, the fact that the oligopolistic stockholder is in a position to be involved in the operation of the corporation as of the date on which the tax liability is established and the fact that the oligopolistic stockholder is registered in the register of stockholders, etc. of the corporation is not enough to impose the tax liability (see, e.g., Supreme Court Decision 91Nu7821, Jun. 11, 191). If the tax office imposes the secondary tax liability under Article 39 subparag. 2 of the Framework Act on National Taxes, the fact corresponding to the oligopolistic stockholder meeting the requirements under subparagraph 2 must be asserted and proved, but if the tax office submits data that can be seen as the oligopolistic stockholder by the list of stockholders, the statement of stock movement or the register of stockholders, etc., and the person who intends to be exempted from the liability as the secondary taxpayer shall prove the fact that the stockholder’s name was stolen or that it is merely a formal stockholder, etc.

(Supreme Court Decision 91Nu1721 delivered on July 23, 1991)

2) In light of the above legal principles, it is recognized that the Plaintiff already transferred the shares of the company of this case to 00 to transfer the shares of this case prior to the date on which the liability to pay delinquent tax of this case was established, and that the Plaintiff owned 100% of the shares of the company of this case as of the date on which the liability to pay delinquent tax of this case was established. The Plaintiff constitutes an oligopolistic shareholder under Article 39 subparagraph 2 of the Framework Act on National Taxes as of the date on which the liability to pay delinquent tax of the company of this case was established. Meanwhile, according to Gap's statement Nos. 1, 3, 5, 6, 11 and the court's request for delivery of documents to 00 district public prosecutor's office 00 district public prosecutor's office 00 district public prosecutor's office of this case to transfer the shares of the company of this case, the Plaintiff did not have any substantial reason to acknowledge that the Plaintiff did not constitute the Plaintiff's shares at the time of this case's transfer or 3000 local public prosecutor's office 000.

3. Conclusion

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

(Attached Form)

Relevant statutes

▣ 국세기본법

Article 39 (Secondary Liability to Pay Taxes by Investor)

Where the property of a corporation is insufficient to cover the national tax, additional dues, and disposition fee for arrears imposed on or to be paid by the corporation, any of the following persons as of the date on which the national tax liability is established shall assume secondary tax liability for the shortage: Provided, That in cases of an oligopolistic stockholder under subparagraph 2, the limit shall be the number of stocks (excluding non-voting stocks; hereafter the same shall apply in this Article) or amount calculated by multiplying the shortage by the total number of stocks issued by the corporation (excluding non-voting stocks; hereafter the same shall apply in this Article) or the total amount invested by the

2. A stockholder or one limited partner and a person prescribed by Presidential Decree from 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 exercise the rights thereto (hereinafter referred to as " oligopolistic stockholder").