The burden of proving that the name of the shareholder has been stolen

In a case where it appears to be a single shareholder in the light of the register of shareholders, detailed statement of stock transfer or corporate register, etc., if there are circumstances, such as where the actual shareholder is stolen, or where registration is made in a name other than the name of the de facto ownership, the nominal owner claiming that it is not a shareholder should prove

Article 39 (Secondary Liability for Tax Payment of Contributors)

2016Guhap2217 Revocation of Disposition of Tax Imposition

CHAPTER A

BB Director of the Tax Office

November 11, 2016

December 9, 2016

1. The plaintiff's claim is dismissed.

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

The Defendant’s corporate tax and additional tax for the year 2012 against the Plaintiff on March 10, 2016, and the second term portion for the year 2010.

Value-added Tax and Additional Tax, Corporate Tax and Additional Tax in 2011, Corporate Tax and Additional Tax in 2010, 2012

SectorValue-added tax and additional tax, value-added tax and additional tax for the first term of 2012, and value-added tax for the first term of 2011

Each imposition of value-added tax and additional tax, and value-added tax and additional tax for a period of two years in 2011 shall be revoked.

1. Details of the disposition;

A. CCC Co., Ltd (hereinafter referred to as “instant company”) was established on July 25, 2007 as an unlisted company engaging in trade business, etc. and closed on July 21, 2014. The Plaintiff, as an auditor of the instant company, was registered as a director of the instant company, 2,000 shares out of 10,000 shares, and 8,000 shares of the Plaintiff’s former spouse (Divorce on November 4, 2015) as a director.

B. The instant company: (a) from the second half of 2010 to the second half of 2012, 7,97,780 won in total;

and 2010 - Total amount of corporate tax for the business year 2012 207,276,280 won in arrears, and the defendant has paid national tax.

As of the date the tax liability becomes effective, the Plaintiff as the oligopolistic shareholder is designated as the secondary taxpayer, and March 10, 2016.

43,084,700 won (value-added tax 2010) equivalent to the Plaintiff’s share out of the total amount in arrears.

2nd term portion 136,040 won, first term portion 528,250 won for year 201, second term portion 396,790 won for year 201, 2012

The first term portion 237,430 won and the second term portion 300,980 won in 2012,59,490 won in total, and corporate tax 2010 projects

2,64,610 won for each year, 7,268,080 won for each business year, and 31,52,520 won for each business year, 2012

The notice was given to pay KRW 41,485,210 (hereinafter referred to as the "disposition of this case").

D. Although the Plaintiff filed an appeal, the Tax Tribunal dismissed the appeal on May 31, 2016.

[Reasons for Recognition] Facts without dispute, Gap evidence 1, 2, Eul evidence 1 and 4 (including each number), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The former spouse, KimD, without the Plaintiff’s consent, listed the Plaintiff as the shareholder of the instant company, and the Plaintiff was unaware of the fact that the Plaintiff was the shareholder before receiving the notice of the instant disposition, and did not exercise the shareholder’s right. Therefore, the instant disposition premised on the Plaintiff as the shareholder is not only unlawful, but also deviates from and abused the discretionary power.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

Article 39(1)2 of the Framework Act on National Taxes imposes upon an unlisted corporation’s property on the corporation.

(b) If the corporation fails to pay national taxes, additional dues, and disposition fee for arrears, the shortage;

with respect to the amount of the second tax liability, such Act as of the date when the national tax liability becomes effective.

rights of 51/100 or more of the total number of shares issued by the relevant corporation among oligopolistic shareholders;

A person who actually exercises interest (a) (including a person in a de facto marital relationship), regardless of the name of honorary chairperson, president, vice president, chief executive officer, director, or any other person who actually controls the management of the corporation (b) and the spouse (including a person in a de facto marital relationship) of the person referred to in items (a) and (b) and other persons who share the same livelihood with such person. The proviso of Article 39(1) of the Framework Act on National Taxes limits the shortage to the amount calculated by multiplying the total number of outstanding stocks (excluding non-voting stocks) of the corporation by the number of oligopolistic shareholders owned by the oligopolistic shareholders (excluding non-voting stocks). Article 39(1)2 of the same Act provides that the oligopolistic shareholders in a special relationship with one shareholder as prescribed by the Presidential Decree refers to one shareholder, and whose total amount of stocks are owned by such person is at least 51/100 of the total number of outstanding stocks of the corporation concerned, and the oligopolistic shareholders whose livelihood is at least 2 (c) 1/100 of the total number of outstanding stocks of the corporation concerned and who actually exercises their rights.

Meanwhile, the issue of whether a shareholder is an oligopolistic shareholder under the above provision shall be determined by whether the shareholder is a member of the majority group, and even if there is no fact involved in the management of the company, it shall not be determined that the shareholder is not an oligopolistic shareholder. The fact of ownership of the shares shall be proven by the tax authority through the data such as the shareholder registry, specifications of stock movement, or the corporate register, etc. However, even in the case where a shareholder appears to be a single shareholder in light of the above data, if there are circumstances such as where the shareholder was stolen or registered in the name other than the real shareholder, the actual shareholder shall not be deemed to be a shareholder, but it shall be proved by the nominal shareholder who asserts that he is not a shareholder (see Supreme Court Decisions 91Nu1721, Jul. 23, 1991; 94Nu6222, Aug. 12, 1994; 95Nu1470, Dec. 6, 1996; 2003Du6165, Jul. 16, 2004).

In light of the above evidence, Eul evidence, Eul evidence Nos. 2, 3, 5, 6, and 7, the plaintiff held 2,00 shares of the company of this case from 2007 to 2012, and the plaintiff and KimD held 100% of shares of the company of this case and the plaintiff's spouse are acknowledged within the above period, so it is reasonable to deem that the plaintiff falls under an oligopolistic shareholder as provided for in the above legal provision. The witness KimD's testimony in the subscription form for shares was entrusted to the tax accountant and disposed of, and the share price was paid to the principal. However, in light of the relation with the plaintiff and KimD, the plaintiff's assertion alone cannot be viewed as a fraudulent use of the shareholder's name. Thus, the plaintiff's assertion is without merit.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as there is no reasonable ground.