Although the form of transferring the instant shares takes place, it is reasonable to view the substance as a title trust.

Although the plaintiffs take the form of transferring the shares of this case to the non-party, it is reasonable to see that the substance is the title trust. Therefore, it is reasonable to designate and impose the plaintiffs as the second taxpayer of the delinquent corporation.

Article 39 (Secondary Liability to Pay Taxes by Investor)

2014Guhap5334 Disposition to revoke the imposition of value-added tax

AA and 1

○ Head of tax office

May 21, 2015

June 26, 2015

1. All of the plaintiffs' claims are dismissed.

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

Cheong-gu Office

On June 11, 2013, the Defendant: (a) designated Plaintiff BB as the secondary taxpayer of DDDD (hereinafter “Nonindicted Company”) on June 11, 2012; (b) revoked the imposition of the first fixed value-added tax for the first time in 2012; (c) the second time in 2012; (d) the second time in 2012; and (e) revoked the imposition of the second time in 2013; and (e) on July 4, 2013, the Plaintiff A designated Nonparty Company A as the second taxpayer; and (e) revoked the imposition of the first fixed value-added tax for the first time in 2012, the second time in 2012, the second time in 2012, and the second time in 2012, the second time in 2012, and the imposition of the ○○○○.

1. Details of the disposition;

A. On December 31, 2012, Nonparty Company voluntarily closed its business, and the first period of 2012 prior to the closure of business; and

Although the value-added tax was reported for the second period in 2012, the sum of the value-added tax reported was not paid ○○○.

B. On June 14, 2013, the Defendant: (a) designated the Plaintiffs as secondary taxpayers of Nonparty Company’s secondary tax payment; and (b) notified Plaintiff A of the Plaintiff’s KRW ○○○○○○○○○, and Plaintiff BB based on the investment ratio on the amount of delinquent tax as follows (hereinafter “Disposition against Plaintiff A”); and (c) “Disposition against Plaintiff BB”.

C. The Plaintiffs were dissatisfied with the instant Disposition No. 1 and Disposition No. 2, and filed a petition for an inquiry with the Tax Tribunal on January 7, 2014, following the filing of an objection on September 11, 2013. The said Tribunal decided to dismiss the petition on June 30, 2014.

[Reasons for Recognition] Unsatisfy, Gap evidence 1 to 3, 5, 6, 1

Each entry of evidence (including each number) and the purport of the whole pleading

2. The legality of disposition.

A. The plaintiffs' assertion

Since the transfer of the shares of the non-party company between the plaintiff A and CCC was duly made as a repayment of the existing debt that the plaintiff AA had borne by CCC, the actual owner of the shares of this case at the date of establishment of the above tax liability is CCC, and it is unlawful for the defendant to regard it as a title trust and make the first disposition against the plaintiff AA.

As long as the first disposition of this case is unlawful, the second disposition of this case by the defendant is unlawful, since the plaintiff BB, who only held 8,000 shares out of 32,00 shares issued by the non-party company as of the date when the liability to pay the second disposition of this case was established, cannot be deemed as the second taxpayer by the non-party company.

B. Relevant statutes

Attached Form 3 is as listed in the "relevant Acts and subordinate statutes".

(c) Fact of recognition;

1) The closure process of the non-party company

A) On July 3, 2001, the non-party company closed its business on December 31, 201, and Plaintiff A was in office as the representative director of each non-party company from September 21, 2005 to January 21, 2010; and Plaintiff BB, the relative of Plaintiff A, from January 22, 2010 to the closure of the non-party company.

B) The non-party company is a principal complex building with two underground floors, 127 apartment houses of 33 stories above ground and 12 households of officetels which are scheduled to complete and move into the 2009 on the ○○○○○○-dong, ○○○○-dong, and 19 parcels of land.

On November 23, 2005, 2005, EE (hereinafter referred to as “EE”) was selected as the contractor for new construction of ○○○ apartment (hereinafter referred to as “instant sales business”), and EE (hereinafter referred to as “EE”).

C) On November 23, 2005, Nonparty Co., Ltd. entered into a land trust agreement with ○ Asset Trust Co., Ltd. and EEE as parties to each contract, and on the same day, ○○ Bank entered into a trust-type land trust agreement with its primary joint and several sureties as EE, with 16 billion won as a P/F loan, and carried out the sales business of this case. The Plaintiffs were the secondary joint and several sureties.

D) Since then, EE, on September 14, 2009, obtained additional loans of 34 billion won for the completed building as security (this amount was for the replacement of the existing loan, and 18 billion won was for the additional loan), and on March 26, 2012, the FFFF (hereinafter “FFFF”) entered into a purchase-sale agency contract with the 32.1 billion won unit apartment units unsold in lots due to the normal sale price of 5.3 billion won at 5.3 billion won, on August 31, 2012. Accordingly, the non-party company completed the registration of ownership transfer for the above apartment units with the FFFF on August 31, 2012.

E) The non-party company issued a tax invoice for the said transaction and filed a tax invoice for the first and second half of 2012, but did not pay the tax invoice.

F) Meanwhile, due to the unsold housing units, cancellation situations, discount sale, etc., Nonparty Company had been in a state where the cumulative amount of deficits in the business year 2008 was in most of KRW 320,00,000,000 in capital. From the business year 2009, the accumulated amount of losses was closed in the state where the accumulated amount of KRW 31.7 billion occurred on December 31, 2012 each year.

2) The transfer process of the plaintiffs' shares

A) Plaintiff BB acquired 20,800 shares of Nonparty Company in 2004, but transferred 6,400 shares to Plaintiff A who was a friendly parent in 2005. On December 3, 2010, Plaintiff B transferred 6,400 shares to GG.

B) Plaintiff A acquired 6,400 shares from Plaintiff BB in 2005, and owned 3,200 shares from HH, and 4,800 shares from JJ, and owned 14,400 shares in total (hereinafter “transfer shares”). On January 21, 2010, Plaintiff A transferred the entire shares to CCC.

(hereinafter referred to as "transfer of shares of this case").

C) Specific changes in the shares of the non-party company are as listed below.

[Reasons for Recognition] Unsatisfy, Gap evidence 1 to 3, 5, 6, 8

Each entry of heading evidence, 11, Eul evidence 1 (including each number), and the purport of the whole pleadings

D. Determination

1) Article 39 of the former Framework Act on National Taxes (amended by Act No. 11604, Jan. 1, 2013) provides that if the property of a corporation is insufficient to cover the national taxes, additional dues, and disposition fee for arrears that the corporation imposed or should pay, with the property of the corporation, a person prescribed by Presidential Decree among the general partner with unlimited liability as of the date on which the liability to pay national taxes is established, one stockholder or partner with limited liability, and his/her related parties, who holds more than 50/10 of the total number of outstanding stocks or total amount of investment of the relevant corporation and actually exercises his/her rights thereto (subparagraph 2) shall be liable to pay secondary taxes for the shortage. However, in cases of oligopolistic stockholders under subparagraph 2, the amount of shortage shall be limited to the amount calculated by multiplying the amount calculated by dividing the total number of outstanding stocks (excluding non-voting stocks) or total amount of investment of the relevant corporation by the number of stocks or amount of investment actually exercised by the relevant oligopolistic

In addition, the former Enforcement Decree of the Framework Act on National Taxes (amended by Presidential Decree No. 23878, Feb. 15, 2013)

According to Article 20, "a person prescribed by Presidential Decree from among related parties" means a person who has a relationship falling under any of the subparagraphs of Article 18-2 with the relevant stockholder, and Article 18-2, subparagraph 1 of Article 18-2 stipulates "relative relationship", and Article 1-2, subparagraph 1 of Article 1-2 provides "relative relationship within the sixth degree".

2) Whether the first disposition of this case is lawful

A) In order to be lawful in the instant disposition, Plaintiff A transferred the instant shares to CCC, but its substance is merely a title trust, and at the time of the establishment of the instant tax liability, the actual owner of the instant shares is Plaintiff A, and accordingly, it should be recognized that, in addition to the number of stocks of Nonparty BB owned by Plaintiff BB, at least 50% of the entire shares of Nonparty A company should be held.

B) First of all, it is difficult to recognize that the CCC prepared to sell the instant transferred shares to CCC at KRW 10,080,000, and there is no other evidence to acknowledge otherwise, in light of the content of the evidence No. 8-1 stated in the evidence No. 8-1 that, although the CCC heard the speech that it grants the shares of the non-party company from the Plaintiff A to the non-party company, it is difficult to acknowledge that the instant transferred shares were actually prepared by CCC, and there is no other evidence to acknowledge otherwise.

Furthermore, considering the following circumstances in the above facts, Plaintiff A takes the form of transferring the instant shares to CCC, but it is reasonable to see that the substance is a title trust.

① On April 5, 2013 and April 16, 2013, the CCC consistently responded to the purport that the question asked about the acquisition process of the instant shares and the relationship with the Plaintiffs (Evidence A No. 8-2) was made on two occasions on April 5, 2013, Plaintiff BB was unaware of, Plaintiff AB, Plaintiff A and Nonparty Company did not know about the fact that Nonparty Company was a company constructing an apartment. Plaintiff A and Non-Party Company did not know about the fact that Nonparty Company was an apartment. Plaintiff A and Non-Party Company did not know about the fact that she was a company constructing an apartment. Plaintiff A and Non-Party Company did not receive a share contract, and did not know about Non-Party Company’s management (In light of CCC’s health condition at the time, the above question was made by falsity, but there was no evidence to acknowledge that CCC’s emergency treatment was conducted on March 25, 2013, and there was no other evidence to acknowledge that CCC was conducted on the following day.

② Recognizing that the CCC acquired the instant shares from the Plaintiff AA, the said questionnaire No. 9-1, which was written to the effect that the CCC responded differently from the fact that it was written in a mental congested state due to the heart operation, is not a cCC’s own written confirmation, but it is unclear whether CCC was fully aware of the content and prepared by the CCC in a state where the content had already been written as active.

③ If the instant shares are transferred to CCC as a repayment clause for the obligation owed by the Plaintiff AA to CCC, the Plaintiff AA had the obligation owed to CCC, but there is no evidence to acknowledge it.

④ According to the Plaintiffs’ assertion, the CCC was residing in the multi-family house provided by the Plaintiff AA for two years, and it does not seem that the CCC had the ability to take over the instant transferred shares to the CCC, which is economically difficult to reside in the house owned by another person.

⑤ Since CCC acquired the instant shares, it does not seem to exercise any right or influence over the non-party company as a shareholder of the non-party company.

C) Ultimately, on June 30, 2012 and December 31, 2012 of the same year, the date on which the liability to pay the value-added tax was established for the first and second period of the year 2012, the actual owner of the instant shares was recognized as the Plaintiff AA, and the fact that the number of non-party companies owned by the Plaintiff BB is 8,000 shares is no dispute between the parties, and if the shares held by the Plaintiff BB in a special relationship with the non-party company A, the shares held by the non-party company as 22,40 shares (14,40 shares + 8,000 shares) and the total shares issued by the Plaintiff BB exceed 32,00 shares, and it is obvious that the Defendant deemed the Plaintiff A as the secondary taxpayer of the non-party company and rendered the first disposition of this case is legitimate.

2) Whether the second disposition of this case is lawful

The argument that the second disposition of this case is unlawful is based on the premise that the first disposition of this case is unlawful, and as long as the first disposition of this case is legitimate, the second disposition of this case is legitimate.

3. Conclusion

Therefore, the plaintiffs' claims of this case are dismissed as it is without merit. It is so ordered as per Disposition.

partnership.