Propriety of the designation of a secondary taxpayer

In the event that there are circumstances, such as the misappropriation of the shareholder’s name or the registration in the name other than the name of the de facto ownership, the name alone cannot be deemed to be the shareholder, but the nominal owner claiming that he is not the shareholder shall prove that he is not the shareholder, and the plaintiff is not the

2017Guhap674777 Demanding revocation of the disposition imposing corporate tax, etc.

AA

BB Director of the Tax Office

2018.07.05

2018.07.19

1. On October 7, 2016, the Defendant revoked both the imposition of KRW 15,861,620 (including additional taxes) corporate tax of KRW 15,861,620 (including additional taxes), and KRW 3,840,00 (including additional taxes) and KRW 68,810,640 (including additional taxes) of value-added tax of KRW 20 in 2014 and KRW 68,810,640 (including additional taxes).

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

The same shall apply to the order.

1. Details of the disposition;

A.CC Co., Ltd. (formerly: D.D.; hereinafter “CC”) was established on November 20, 2014 with the location of the place of business as 12-12 “Do ○○○○○○, Gyeonggi-do ○○,” and the purpose of business was as a type of a workshop, a mid-term leasing agency business, etc.

B. The Plaintiff was registered as a representative (in-house director) from November 20, 2014 to December 18, 2014, on the corporate register of theCC. EE is registered as the auditor of the company from November 20, 2014 to December 18, 2014, and from December 19, 2014, as the representative (in-house director) of the company from December 19, 2014, the FF, the birth of the EE, is registered as the auditor of the company from November 20, 2014 to December 19, 2014.

C. From 2014 to 2015, the Plaintiff was registered in the register of stockholders as holding 20,000 common shares issued by the said company (100%).

D.CC defaulted 15,861,620 won in total, 15,861,620 won in business year 2014, 2014 value-added tax (including additional tax), 3,840,000 won in 2014, and 68,810,640 won in 2015, and 2nd value-added tax (including additional tax) in 2015, and the Defendant was unable to collect the amount in arrears with its property on October 7, 2016, deeming the Plaintiff as the oligopolistic shareholder ofCC pursuant to Article 39 of the Framework Act on National Taxes, and designated the Plaintiff as the second taxpayer, and accordingly, the Defendant notified the Plaintiff of the amount equivalent to 15,861,620 won in total, 2014, 3,840,000 won in value-added tax (including additional tax), and 201,000 won in value-added tax (including additional tax), 2019% in total.

E. The Plaintiff dissatisfied with each of the instant dispositions and filed an objection against the Defendant on October 21, 2016, but was dismissed on December 9, 2016. The Plaintiff filed an appeal with the Tax Tribunal on March 9, 2017, but the Tax Tribunal dismissed the Plaintiff’s claim on May 26, 2017.

2. Whether the instant disposition is lawful

A. The parties' assertion

The Defendant asserts that the instant disposition is lawful on the ground of the grounds of the disposition and the relevant laws and regulations. The Plaintiff asserted that the instant disposition is unlawful on the ground that the instant disposition was based on the following grounds.CC actually established and operated EE upon the payment of share capital. The beneficial shareholder is EE. The Plaintiff leased only the name of the representative at the time of establishment of CC upon the request of GGG. The Plaintiff voluntarily registered the Plaintiff as a sole shareholder in the company’s shareholder registry, and the Plaintiff was unaware of the fact that E voluntarily registered as a sole shareholder in the company’s shareholder registry. The Plaintiff is merely registered as a shareholder in the company’s shareholder registry only in form, but does not participate in the company’s management of CC or receive dividends, and thus, each of the instant dispositions based on the premise that the Plaintiff is a beneficial shareholder of CC.

(b) Fact of recognition;

1) From around 2008, EE operated various business entities, such as HHH H machinery (FF) and J dry, and FF entered into accounting management, remittance, etc. from EE’s business entities until May 2015. EE entered into an agreement that, around January 2014, 100, the semiconductor factory extension site (hereinafter “the construction site in this case”) located in the city of ○○ as a broker of GG (hereinafter “the construction site in this case”), and in return, from May 2014, the amount equivalent to 10% of the total amount of profit accrued from the Cick Rental Services will be paid to GG for rebates as rebates.

2) On September 25, 2014, in order to identify the sales volume of the Crerereree rental services in the course of implementing the agreement with GG and to clarify the settlement of rebates, the EE established Kreree Industries Co., Ltd. (hereinafter referred to as “CC”) on September 25, 2014 with the Plaintiff, a representative of the GG, as an in-house director (hereinafter referred to as “Krree Industry”) (Evidence No. 7-1), and with the Plaintiff’s representative, the CC established the CC and had the said company deal with the Y construction andY. At the time, the Plaintiff received a request from the CC for the request from the CC to lend the name of the representative of the CC and transferred the Plaintiff’s seal imprint, a certificate of personal seal impression, and the Plaintiff’s certificate of deposit account in the name of the Plaintiff to the FF on September 20

3) On November 19, 2014, FF deposited KRW 100 million into the said new bank account under the Plaintiff’s name at the request of EE. FF, upon the direction of EE, prepared on November 21, 2014 a report on establishment of theCC and an application for business registration (Evidence 5-2), and submitted it to the competent authority through a certified judicial scrivener. However, the representative column of the above application includes “Plaintiff”, and “name” among the representative’s personal information, includes “FF” as well as “family relationship with the applicant.”

4) FFF는 일자 불상경 이 사건 건설현장에 크레인을 임대하여 주고 발생하는 수입 중 EEE이 GGG에게 지급하여야 할 리베이트와 관련하여 GGG과 통화하는 도중 'CCCCCC는 QQ이 오빠 법인이다'라는 취지로 진술하였다(갑 제11호증).

5) Meanwhile, EE was convicted of the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) after being prosecuted for the criminal facts that "E jointly with the EEE in order to supervise whether or not the provision of the Crain Rental Service at the construction site of this case was supplied and the time of supply was supplied, and it was accused of the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) by falsely claiming the amount of the cost of the services at the daytime and at night from October 25, 2014 to May 25, 2015. EE paid the amount of KRW 5 million on December 22, 2015 as if GGGGG was employed as an employee of the Plaintiff, and therefore, it paid the 10 months's payment of Wnats, "The present rate of 200,000 won was paid to the Plaintiff who did not seem to be 10,000 won after the end of 20,000.

C. Determination

1) Whether a person is an oligopolistic shareholder under Article 39(1)2 of the Framework Act on National Taxes shall be determined by whether the person is a member of a group of stocks owned by the majority. 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 stocks is proven by the tax authority through the data such as the register of shareholders, the statement of stock movement or the register of corporate register, etc. However, even if the person appears to be a single shareholder in light of the above data, if there are circumstances, such as where the person is stolen the name of the shareholder or is registered in the name other than the name of the actual owner, the actual shareholder cannot be deemed to be a shareholder, but this should be proved by the nominal owner who asserts that he is not a shareholder (see, e.g., Supreme Court Decision 200

2) In light of the above legal principles, comprehensively taking into account the following circumstances, which can be seen by comprehensively taking into account the following facts revealed in light of the foregoing facts and the financial transaction information reply and the entire purport of the argument of the ○○ Bank, the Plaintiff is registered as a single stockholder on the register of stockholders of the CC, but it is reasonable to deem that the actual stockholder of the CC is EE, and the Plaintiff is merely a next stockholder of the CC.

① At the time of the establishment ofCC, the Plaintiff had a personal seal impression, personal seal impression, and the Plaintiff’s ○○ Savings Account under the Plaintiff’s name with respect to the FF that received instructions from the EE, and later, the said ○ Bank Account seems to have been managed and controlled by the EE.

② At the time of the establishment of theCC, a person who deposited money in the Plaintiff’s account in the name of the Plaintiff is FF. The financing source is KTB operated by EE. The Plaintiff did not pay the stock price at the time of its establishment or exercise its shareholder’s right.

③ The GG merely received rebates equivalent to 10% of the revenue from the EE from the instant construction site, and did not participate in the operation of theCC, such as the actual Crail Rental Business. The Plaintiff also received money and the vehicle amounting to 5 million won a month from theCC. However, this is merely a consideration for lending the name of the representative, and it does not appear that the shareholder received dividends or received dividends from theCC as a shareholder.

3) Therefore, since the Plaintiff cannot be deemed to have actually exercised its rights as an oligopolistic stockholder ofCC pursuant to Article 39(1)2 of the Framework Act on National Taxes, each of the instant dispositions taken on a different premise is unlawful, and the Plaintiff’s assertion pointing this out is with merit.

3. Conclusion

If so, the plaintiff's claim is reasonable and acceptable.