Changwon District Court 2005Guhap3286, 207.06

National High Court Decision 2007Da2289 (207.05)

Whether the designation of the secondary taxpayer is legitimate or not;

Since it is recognized that an oligopolistic shareholder who actually owns shares in the name of another person is entitled to exercise his right and actually control the management thereof, the second person liable for tax payment is a political party.

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

Article 39 of the Framework Act on National Taxes

1. The plaintiff's appeal is dismissed.

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

On February 1, 2005, the judgment of the first instance is revoked, and the defendant revoked the disposition that notified the plaintiff of the value-added tax and corporate tax on the Plaintiff on the attached list of the imposition details on the ○○ Mamerl Korea Co., Ltd. on February 1, 2005 (laver and Kim Hong revoked withdrawn the lawsuit in this case at the trial)

1. Details of the disposition;

The following facts are not disputed between the parties, or may be recognized by comprehensively taking into account the overall purport of the arguments in each entry in Gap evidence 1, 12, Eul evidence 1-1 to 5, and Eul evidence 50, 53 and 54, and Eul evidence 55-1 through 6:

A. ○○○ Medicar Co., Ltd. (hereinafter referred to as “○○○ Medicarco”) is a corporation established on November 18, 199 for the purpose of leasing medical facilities, wholesale and retail business, etc. and closed on December 31, 2003.

B. The Defendant imposed and notified each value-added tax on each item on the corporate tax in arrears column stated in the separate sheet on the grounds that ○○○○ Madicar and 2004 had been unjustly refunded the value-added tax on June, 204. Around December 2004, the Defendant imposed and notified corporate tax on the corporate tax in arrears column listed in the separate sheet on the details of imposition, but did not pay it within the payment period.

C. Accordingly, on February 1, 2005, the Defendant deemed the secondary taxpayer under Article 39(1)2 of the former Framework Act on National Taxes (amended by Act No. 7930, Apr. 28, 2006; hereinafter referred to as the “former Framework Act on National Taxes”) as the oligopolistic shareholder whose stocks are owned by the Plaintiff and the Plaintiff’s son, Kim Jong-ri and Kim Hong, the Plaintiff’s children, and lineal ascendants and descendants living together with the oligopolistic shareholder, and the secondary taxpayer under Article 39(1)2 of the former Framework Act on National Taxes (amended by Act No. 7930, Apr. 28, 2006; hereinafter referred to as the “former Framework Act on National Taxes”). Under Article 39 of the former Framework Act

D. The plaintiff was dissatisfied with the disposition of this case and filed a request for examination with the Commissioner of the National Tax Service on March 31, 2005, but was dismissed on June 27, 2005.

E. On the other hand, on November 7, 2008, the Defendant determined that all of the shares of Kim ○ and Kim Hong were owned by the Plaintiff, and revoked the instant disposition against Kim ○○ and Kim Hong, and imposed and notified all of the corporate tax in arrears on the corporate tax amount indicated in the attached Form No. 1 on the Plaintiff.

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The plaintiff is the second taxpayer under Article 39 (1) 2 of the former Framework Act on National Taxes, while actually controlling the management of ○○○○ and ○○○○○○○○○○○○○○○○○○ and ○○○○○○○○○○○○○○’s shares (51% of the total number of outstanding shares) and did not actually control the management of ○○○○○○○○○○○○○○○○○○○ shares (51% of the total number of outstanding shares), and as a result, it is unlawful to judge the plaintiff as the second taxpayer and to take the instant disposition against the plaintiff.

(b) Related statutes;

Article 39 (Secondary Liability to Pay Taxes by Investor under the former Framework Act on National Taxes)

(c) Fact of recognition;

The following facts are not disputed between the parties, or are recognized by comprehensively taking into account each of the evidence Nos. 1 and 5, evidence Nos. 1 through 5, evidence Nos. 6 2, and evidence Nos. 2, 3, 4, and 8, evidence Nos. 5 and 9, 1.2, 3, and evidence Nos. 40 evidence Nos. 42 and 46 respectively, and 1 through 4 of evidence Nos. 12 and 40 evidence Nos. 42 and 46, and each of the testimony of the lower court’s largest witness Nos. 40 and 12, and the highest witness Nos. 1 through 5, A7.

(1) The Plaintiff, as the actual operator of the Seoul ○ Hospital, is to establish a hospital in the Dong Young-si.

On November 18, 1999, ○○○○○ Hospital was established. However, due to the circumstances such as the bad credit holder in connection with the insolvency of the Seoul○ Hospital and the criminal procedure, etc., ○○○○○○○○ was first entrusted with the representative director (on February 8, 2001, the Plaintiff sent the resignation book to the Plaintiff by means of content-proof mail, and the Plaintiff entered the Plaintiff as the president of the ○○○○○○○○○ Hospital). From July 16, 2001, 201, ○○○○○○ Hospital, which was the husband, had the representative director take charge of the representative director.

“(2) The Plaintiff purchased 12 lots of land, such as 00 ○○○○-11 l,729 m29 m2, in the name of Tong Young-si ○○○○○○○○○○-11 m,729 m29 m2, and newly constructed the building on the ground by the bank, etc., but it does not meet the requirements for establishing a medical corporation, and thus, it was impossible to establish a ○○ Hospital as a medical corporation on November 5, 2002 under the name of the medical corporation.” (3) The Plaintiff opened the hospital on November 5, 2002 under the name of the medical corporation, including “(4) medical doctor,” and (3) the selection and appointment of the staff members of the ○○○ Hospital such as the medical staff, nurses, etc., payment of wages, and approval of the opening status and minutes of each department.

(4) On March 9, 200, the Plaintiff entered into a contract for construction with ○○ Construction Co., Ltd., a contractor of the building in the hospital, and settled the construction cost, and entered into a contract for the lease on the store in the hospital (the Plaintiff entered into a contract under the name of ○○ Medicar Chairman or an individual).

In addition, the Plaintiff introduced its employees after the opening of the ○○ Hospital as the actual owner of the ○○ Hospital and the ○○○ Medical Center, and recommended its employees to preside over the meeting of the executive members of the ○ Hospital once a week, supervise the hospital operation and financial issues, encourage its employees to do so, and, from December 12, 2002 to May 15, 2003, paid the amount of money to the employees of the ○○ Hospital to be paid to the ○○ Hospital, and used the money for the hospital operation expenses, such as pay, etc. to the employees of the ○○ Hospital. The Plaintiff was actually involved in the establishment and operation of the ○○ Hospital by borrowing KRW 70 million from the ○○ Savings Bank as security the lease deposit and the medical expenses claims of the Health Insurance Corporation in the name of ○○○ Hospital.

(5) At the time of the establishment of the ○○○ Madicarpoly, all outstanding shares were 5,000 shares issued in the Plaintiff’s name and were 10,000 shares issued shares after capital increase of 5,000 shares on October 11, 2001. At around December 2001, 2001, the shares were registered in the statement of stock movement that ○○ 2,500 shares, ○○ 2,500 shares, 3,000 shares, ○○ 2,00 shares, 2,490 shares, and ○ ○○ 2,50 shares, 2,500 shares, and 3,00 shares, and 2,010 shares.

However, around September 2, 2002, the register of shareholders held by ○○ Mamerl Transport contains 2,40 shares (24%) around September 2, 200, 200 shares with 2,50 shares (25%) with 00 shares (3,00 shares) with 00 shares (30%) with 2,100 shares with 2,10 shares with 2,10 shares (21%) with 0 shares.

(6) On October 26, 200, the Plaintiff trusted the above 500 shares capital to ○○ and to ○○○○, its wife. The success in the introduction of a loan between ○○ and ○○○, the Plaintiff made a contract (Evidence A2) to sell the above 50 million shares owned by ○○ and ○○○ to ○○ and ○○○, with the intention to return to the Plaintiff, if the success in the introduction of a loan is not possible. However, on October 26, 2001, the Plaintiff prepared a contract to sell the above 50 million shares to ○○ and ○○○ to 50 million won.

Then, after the date of the “Agreement with the Plaintiff as of December 30, 202, the Plaintiff and the largest ○○ was drafted again an agreement stating that the Plaintiff is the Plaintiff and the actual owner of 51% (the largest 21%, and 30%) of the shares of the largest ○○○ Round on the ground that he is the Plaintiff, and that his management shall be jointly operated and jointly owned by the Plaintiff and the largest ○○ Pool on the ground that he is the Plaintiff.

D. Determination

According to the above facts, the actual business owner of ○○ Hospital is ○○○○○○ Hospital, and the Plaintiff actually owned 5,100 shares of ○○○○○○○○○○○ (51% of the total number of shares issued) in the name of ○○○○○○○○○ Hospital (the Plaintiff alleged that the Plaintiff was the nominal owner of shares of ○○○○○○ and ○○○○○○○○○○○○○○○○○○○○○) and the oligopolistic shareholder (the Plaintiff asserted that the Plaintiff was the nominal owner of ○○○○○○○○ and ○○○○○○○○○○○○○). As such, the instant disposition made by the Defendant against the Plaintiff is lawful.

3. Conclusion

Therefore, the plaintiff's claim of this case shall be dismissed as it is without merit, and the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.