Seoul Administrative Court 2007Guhap41734 ( May 21, 2008)

Where it is a shareholder under the name or is not controlled by a corporation, it shall not be designated as a person liable for secondary tax payment.

A shareholder is a shareholder, a nominal shareholder, and an actual shareholder are others, and thus does not constitute a secondary tax obligor. In fact, even if a shareholder falls under an oligopolistic shareholder, a shareholder does not exercise the shareholder's right, such as exercising voting rights or receiving dividends, and does not control the management of the corporation, and thus does not constitute a secondary tax obligor

The contents of the decision shall be the same as attached.

1. Revocation of a judgment of the first instance;

2. On December 26, 2006, the Defendant: (a) designated the Plaintiffs as secondary taxpayers of ○○ Korea Co., Ltd. on December 26, 2006; and (b) revoked the imposition of KRW 1,418,130, and corporate tax of KRW 18,818,640 in 203 as to the Plaintiff Southern Branch; (c) the imposition of KRW 1,418,130 in corporate tax of 2003; (d) the imposition of KRW 18,818,640 in corporate tax of 203; and (e) the imposition of value-added tax of KRW 5,45,710 in 203 as to the Plaintiff Yellow Order; and (e) the imposition of value-added tax of KRW 945,420 in 20, KRW 12,45,710 in corporate tax of 203; and (e) the imposition of KRW 15,45,710 in each business year 2045 and 205.

3. All costs of the lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. Details of the disposition;

A. On October 8, 1999, ○○ Korea Co., Ltd. (hereinafter “○○○ Korea”) was established for the purpose of manufacturing, manufacturing, wholesale business, etc. of household miscellaneousization, and KRW 5,000 in total number of outstanding shares, KRW 50,000 in total amount of capital, KRW 50,000 in total amount of capital. On the same day, the registration of the director and the representative director, Plaintiff ○○ and Hu○○, Plaintiff ○○, and the registration of the appointment of the director, and the registration of the appointment of the auditor of ○○○○○ on May 3, 2001 was completed, and thereafter the registration of the change was completed on May 3, 200, KRW 100 in total amount of total number of outstanding shares, KRW 100,000 in total amount of capital, and on March 25, 200, the registration of the resignation and the appointment of the director and the representative director of the Plaintiff on September 29, 2003.

B. The details of changes in the stock stock by shareholder on each of the 2002 business years and 2003 business years, which ○○ Korea submitted to the Defendant, are as listed below (the 3,000 stock shares of the Plaintiff South Korea as of March 25, 2002, which were acquired 1,000 stock shares from Hu○ fever and 2,000 stock shares from Hu○ Hospital, which were held on March 25, 2002, were stated in the changes in the stock of 202 business years).

(Voting: 40% of the plaintiffs' shares at the end of 2001, 70% at the end of 2002, 70% at the end of 203)

C. On August 1, 2006, the Defendant issued a decision to revise the corporate tax for the business year of 2003 on the grounds that ○○ Korea was subjected to the deduction of the input tax amount by using the processing tax invoice for the first and second years of 2003, on the grounds that ○○ Korea was subjected to the deduction of the input tax amount by using the processing tax invoice. The Defendant issued a decision to revise the corporate tax for the business year of 2003. On August 1, 2006, ○○ Korea determined the due date for payment as 27,278,590 won for the first and second years of 2003, 203, 4,727,110 won for value-added tax for 203, 203, and 62,728,810 won for the business year of 203, and ○ Korea did not have any special property.

D. As of the date of establishment of each of the above tax liability by ○○ Korea, the Defendant: (a) deemed that the Plaintiffs owned the shares of ○○ Korea as of December 30, 2006 and falls under the taxpayer provided for in Article 39(1)2 of the former Framework Act on National Taxes (amended by Act No. 8139 of Dec. 30, 2006; hereinafter “the Act”); (b) designated the Plaintiffs as secondary taxpayer on December 26, 2006; and (c) sold the Plaintiffs’ respective shares in the above tax amount of ○○ Korea’s above tax amount of KRW 8,183,570 on January 1, 2003; (d) 2,418,130; (c) 18,818,640 on corporate tax for 203; and (d) notified Plaintiff ○○ Korea for the payment of value-added tax for 15,45,205,205,27505.

E. On April 19, 2007, the plaintiffs appealed against each of the dispositions of this case and filed an appeal with the National Tax Tribunal on April 19, 2007. The National Tax Tribunal dismissed the plaintiffs' appeal on August 10, 2007.

[Ground of recognition] Evidence Nos. 1-1, 2, 2, 14, Eul evidence Nos. 2-1, 2, 3, 3, Eul evidence Nos. 4-1, 2, 3, and 5, and the purport of the whole pleadings

2. Whether each of the dispositions of this case is legitimate

A. The plaintiffs' assertion

(1) On March 25, 2002, when the ○○○○ Korea established ○○ Korea by jointly investing ○○○○ and Kim Jong-do, owned 4,000 shares equivalent to 40% of its own shares in the name of her mother and her wife, 2,000 shares in the name of her wife, and 2,000 shares in the name of her wife. However, on March 25, 2002, the 2,00 shares in the name of ○○○○ Korea and 30% shares were transferred under the name of ○○○○ Korea and 1,000 shares in the name of ○○○ Korea and ○○○○ Korea, not 2,00 shares in the name of ○○○ Korea and ○○○ Korea, and thus, the Plaintiffs were merely 40% shares in the name of ○○○ Korea and 2,000 shares in the name of ○○○ Korea’s 203 business year.

See The plaintiffs did not make an investment, such as the payment of shares in their own shares, and they do not fall under the "person who actually exercises the right to shares" under Article 39 (1) 2 (a) of the Act because they did not exercise the right to shares at the general meeting of shareholders, and therefore do not fall under the "person who actually controls the management of the corporation" under Article 39 (1) 2 (b) of the Act since they were registered as a nominal representative director or a director. Furthermore, in order of YO, the plaintiffs did not reside together with other plaintiffs at the time of the establishment of the tax liability of this case, and therefore, they do not fall under the "spouse and lineal ascendant or descendant who are living together with the spouse of the person under Article 39 (1) 2 (a) and (b) of the Act as

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(1) The issue of whether a person is an oligopolistic shareholder under Article 39(1)2 of the Act shall be determined by whether the person is a member of the majority of the shares. Specifically, even if there is no fact involved in the management of the company, it cannot be determined that the person is not an oligopolistic shareholder. The fact of ownership of shares is proved by the tax authority’s data, such as the shareholder registry, statement of stock transfer status, or corporate registry registry, etc. However, even if the person appears to be a single shareholder in light of the above data, if there are circumstances, such as that the person is stolen the shareholder’s name or is registered in the name other than the real owner’s name, the person alone cannot be deemed as a shareholder, but the nominal shareholder who asserts that he is not a shareholder should prove that the person is not a shareholder (see Supreme Court Decision 2003Du161

D. The plaintiffs' assertion that the ○○○ Korea's 2002 business year 2002 business year 2000 shares were erroneously stated in the statement of changes such as ○○ Korea's ○○○ Korea's ○○○ Korea's 2003 business year 2003 business year 2003 as well as ○○○ Korea's ○○○ Korea's ○○○○ Korea's 2003 business year she received 1,00 shares from ○○ on March 25, 2002 from ○○○ Korea's Hu○○ Korea's Hu○ Korea's 3003 business year she did not accept the statements and the testimony of

【○○○○○○○ Korea’s name” means that ○○○○○○○○ Korea’s name was a mere nominal shareholder of ○○○○○○○○ Korea’s ○○○○○○○○○○○○○ Korea’s ○○○○○○○○○ Korea’s ○○○○○○○○○○○ Korea’s ○○○○○○○ Korea’s ○○○○○○○○ Korea’s ○○○○○○○ 25, Party A’s 28, Party A’s 32-1, Party A’s 37, Party A’s 37-1, Party A’s 37, Party A’s 38, and 39, Party A’s ○○ Korea’s ○○○ Korea’s ○○○○○ Korea’s ○○○○ ○○○ ○○○ 2, which was a de facto nominal shareholder of 199.

Article 39(1)2 (a) or (b) of the Act does not mean that the plaintiffs are "persons who actually exercise their rights to shares" or "persons who actually exercise control over the management of the corporation" and the persons who are subject to secondary tax liability pursuant to Article 39(1)2 (c) of the Act are limited to the oligopolistic shareholders' spouse or the oligopolistic shareholders who are their lineal ascendants and descendants living together with them (see Supreme Court Decision 2008Du983, Sept. 11, 2008). In light of the above facts and no evidence supporting that the plaintiffs exercised their rights as shareholders, such as exercising their voting rights as shareholders or receiving dividends, etc., the plaintiffs cannot be deemed to fall under the oligopolistic shareholders under Article 39(1)2 (a) or (b) of the Act. Furthermore, the persons who are subject to secondary tax liability pursuant to Article 39(1)2 (c) of the Act are limited to the oligopolistic shareholders who are the spouse of the oligopolistic shareholders or those who actually exercise their rights with them (see Supreme Court Decision 2008Du983, Sept. 111, 20, 2).

3. Conclusion

Therefore, since all of the dispositions of this case based on the premise that the plaintiffs are the secondary taxpayers of ○○ Korea are illegal, all of the claims of the plaintiffs shall be accepted on the grounds of its reasoning, and the judgment of the first instance court, which has different conclusions, is unfair, so it is so decided as per Disposition after cancelling the judgment of the first instance court and cancelling each disposition of this case.