The lawsuit of this case brought without going through the procedure of the previous trial is unlawful.

The lawsuit of this case, which did not go through the procedure of the previous trial, is unlawful, and the notification of additional dues and increased additional dues cannot be deemed a disposition subject to appeal litigation, and it is reasonable to view that the plaintiff was not entitled to designate and impose as the second taxpayer because the plaintiff was the representative (in-house director) of the company of this case on the register of shareholders of this case.

Article 56 (Relation with Other Acts)

2014 disposition of revocation of imposition of value-added tax, etc.

○ Kim

○ Head of tax office

October 24, 2014

November 21, 2014

1. The part of the instant lawsuit and the part of the claim seeking confirmation of invalidity of the disposition imposing additional dues among the ancillary claims are dismissed.

2. The plaintiff's remaining conjunctive claims are dismissed.

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

Cheong-gu Office

The primary purport of the claim is that the defendant's disposition of the value-added tax for the second term of December 4, 2009 against the Rolo○ corporation on December 4, 2009 and the corporate tax of 00 won for the business year of May 14, 2009 is revoked.

Preliminary claim: On July 14, 2010, the Defendant designated the Plaintiff as the second taxpayer of Lolo○○, Inc., the second taxpayer, and confirmed that each disposition of the value-added tax ○○○ and the corporate tax ○○○○ for the second period of 2009 against the Plaintiff is null and void.

1. Details of the disposition;

A. As Ro○○○ Co., Ltd. (hereinafter “instant company”) paid the value-added tax for the second period of February 2009 and the corporate tax for the business year of 2009, the Defendant issued a notice of each of the instant company’s KRW 00 of value-added tax for the second period of December 4, 2009 and KRW 00 of corporate tax for the business year of 2009 as of May 4, 201 (hereinafter “total first disposition”).

B. When the above taxes were delinquent on July 14, 2010, the Defendant, on the corporate register, designated the Plaintiff (a director) as the representative of the instant company, and an oligopolistic shareholder (100%) on the shareholder registry, as the secondary taxpayer for the above delinquent tax, and notified the Plaintiff to pay the Plaintiff the aggregate of the value-added tax ○○○○ (a fine less than ten won) and additional tax ○○ (a fine less than ten won) and the increased additional tax ○○, and the increased additional tax ○○ and additional tax ○○ (a fine exceeding ten won) for the business year 2009 (hereinafter referred to as “the second disposition”).

[Ground of recognition] Facts without dispute, Gap evidence 4, 5, Eul evidence 1 and 2 (including each number; hereinafter the same shall apply), the purport of the whole pleadings

2. Relevant statutes;

It is as shown in the attached Form.

3. Whether the part concerning the primary claim among the lawsuit of this case is legitimate

A. According to Articles 56(2), 61(1), and 68(1) of the former Framework Act on National Taxes (amended by Act No. 911, Jan. 1, 2010; hereinafter the same), an administrative litigation against a disposition No. 1 may be filed without undergoing a request for evaluation or adjudgment under the Framework Act on National Taxes and a decision thereon, and the said request for evaluation or adjudgment shall be filed within 90 days from the date (where a notice of disposition is received, the date on which the notice of disposition is received) on which the relevant disposition becomes known.

B. We examine ex officio the Plaintiff’s death and letter (Evidence A 10 through 19) that the strongB, who was admitted to the detention house, as evidence of the Plaintiff’s assertion that he/she constituted the instant company by stealing the Plaintiff’s name, was sent to the Plaintiff as evidence, during the period from March 29, 2012 to December 24, 2013. According to the Plaintiff’s assertion, it is reasonable to view that the Plaintiff was aware of the first disposition in March 29, 2012. However, there is no evidence to acknowledge that the Plaintiff filed a request for examination or a request for trial seeking the revocation of the first disposition within 90 days from the date on which he/she became aware of the first disposition, since the part of the instant lawsuit in the lawsuit in this case was filed without due process of the previous trial.

4. Whether the part of the claim seeking nullification of the imposition of additional dues and aggravated additional dues is legitimate among the ancillary claims of the instant lawsuit

ex officio, we examine whether the part of the claim to confirm the invalidity of the imposition of additional value-added tax 00 won, increased additional tax 00 won, and additional corporate tax 009 ○○○ and additional corporate tax 009 are legitimate among the ancillary claims of this case.

As a matter of course, a surcharge and increased surcharge under Articles 21 and 22 of the former National Tax Collection Act (amended by Act No. 10527, Apr. 4, 2011) are imposed pursuant to a legal provision even if national taxes are not paid by the due date, the notice of increased surcharge and increased surcharge cannot be deemed a disposition subject to an appeal litigation (see Supreme Court Decision 2005Da15482, Jun. 10, 2005). Therefore, among the ancillary claims in the instant lawsuit, the part of the claim to nullify the imposition of the additional surcharge and increased surcharge and the increased surcharge are unlawful.

5. Judgment on the plaintiff's claim to nullify the invalidity of the second disposition

A. The plaintiff's assertion

The GangwonB established the company of this case with the representative and the sole shareholder of the Plaintiff, on the ground that there is no person to believe that the head of the Tong should be established in order to receive money, and that there is no person to believe that the Plaintiff received the certificate of seal impression, certificate of personal seal impression, and resident registration, and then arbitrarily used it. In other words, the GangwonB established the company of this case by stealing the Plaintiff’s name, and the Plaintiff did not engage in any business with the GangwonB. Therefore, the second disposition under the principle of substantial taxation is null and void.

B. Determination

1) Whether it constitutes an oligopolistic shareholder under Article 39(1)2 of the former Framework Act on National Taxes shall be determined by whether it 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 it 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 it appears to be a single shareholder in light of the above data, if there are circumstances, such as that the actual shareholder was stolen or registered in a name other than the real shareholder, the nominal shareholder cannot be deemed to be a shareholder, but this should be proved by the nominal shareholder who asserts that he is not a shareholder (see Supreme Court Decision 2003Du1615, July 9, 2004)

Meanwhile, in order for an administrative disposition to be null and void as a matter of course, it must be objectively obvious that the defect violates the important part of the relevant law and is objectively apparent (see, e.g., Supreme Court Decisions 2003Du2403, Nov. 26, 2004). In addition, in a case where there are objective circumstances that make it possible to mislead the misunderstanding of any legal relation or factual relation which is not subject to taxation to be subject to taxation, if it can only be identified by accurately investigating the factual relation, whether it is subject to taxation is subject to taxation cannot be deemed apparent even if the defect is serious, and thus, it cannot be deemed that the illegal taxation that misleads the misunderstanding of the fact subject to taxation is null and void as a matter of course (see, e.g., Supreme Court Decisions 88Nu1210, Jul. 11, 1989; 2001Du7268, Sept. 4, 2002).

2) On the other hand, even though the Plaintiff was not the actual representative and the shareholder of the instant company upon the use of the name as alleged by the Plaintiff, as seen earlier, it was registered as the representative of the instant company on the corporate registry and entered that all the shares issued by the instant company were owned in the shareholder registry. Therefore, it is reasonable to deem that the Defendant was not entitled to designate and impose as the secondary taxpayer on the Plaintiff, trusting the Plaintiff as the oligopolistic shareholder, barring any special circumstance. Ultimately, barring any special circumstance, unless the legal relationship or factual relations subject to taxation are accurately examined and the substance is revealed, it shall be deemed that there was an objective circumstance to mislead the Plaintiff as the secondary taxpayer. Thus, even if the second disposition is unlawful, the defect is apparent. Therefore,

6. Conclusion

Therefore, the part of the plaintiff's main claim and the part of the conjunctive claim as to the confirmation of invalidity of the disposition imposing additional dues is unlawful. Thus, all of the plaintiff's conjunctive claims are dismissed. It is so decided as per Disposition by the assent of all.