If there is any objective reason to mislead the misunderstanding that a taxation disposition is subject to taxation, it can not be viewed as a legitimate invalidation.

Even though the designation of the secondary tax liability of an oligopolistic stockholder is different from the actual one, if there are objective circumstances to mislead the misunderstanding that the taxation disposition is subject to taxation, it cannot be viewed as a mere invalidation, even if it is unlawful.

Article 39 (Secondary Tax Liability of Investors)

2014Guhap571 Nullification of a taxation disposition

Gangwon A

○ Head of tax office

August 20, 2014

September 5, 2014

1. The plaintiff's claim is dismissed.

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

It is confirmed that the taxation disposition stated in the attached Form 2 that the Defendant imposed on the Plaintiff is all null and void.

- 2-

1. Details of the disposition;

A. The ○○○ Co., Ltd. (hereinafter “○○○”) is a corporation that was established on June 23, 2009 and runs the business of due diligence and output.

B. On the register of shareholders, from June 23, 2009 to December 24, 2012, the Plaintiff entered that ○○ shares were owned by ○○ from among the ○○ shares issued by ○○, and is registered as ○○ representative director on the register of shareholders from November 10, 2009 to December 24, 2012.

C. As ○○ did not pay the value-added tax, etc. for the second period of February 2009, the Defendant designated the Plaintiff as the secondary tax obligor, and imposed corporate tax, value-added tax, and wage and salary income tax (hereinafter “instant disposition”). [The grounds for recognition] without dispute, each entry in Gap’s 4, 8, 9 (including paper numbers), Eul’s 1 through 5 (including paper numbers), and the purport of the entire pleadings, as a whole.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff entered into an employment contract with ○○ on June 25, 2009 and worked until May 2012, 200 only workers, and ○○○ is a real representative; on the ground that the Plaintiff and Dongho-ho-ho-ho-ho-ho-ho-ho-ho-ho-ho-ho-ho-ho-ho-ho-ho-ho-ho-ho-ho-ho-ho-ho-ho-ho-ho-ho-ho-ho-ho-ho-ho-ho-ho-ho-ho-ho-ho-ho-ho-ho-ho-ho-ho-ho-ho-ho-ho-ho-ho-ho-ho-ho-ho-ho-ho-ho-ho-ho-ho-ho-ho-ho-ho-ho-ho-ho-ho-ho-ho-ho-ho-ho-ho-ho-ho-ho-ho-ho-ho

(b) Related statutes;

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 shall not be determined whether the person is an oligopolistic shareholder. The fact of ownership of stocks shall be proved by the data such as the register of shareholders, the statement of stock movement, or the register of corporate register, etc. by the tax authority. 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, it shall not be deemed as a shareholder only in the name thereof, but it shall be proved by the nominal owner who asserts that he is not a shareholder (see, e.g.

Meanwhile, it is insufficient to say that a disposition of taxation is void as a matter of course only by the fact that there is an unlawful ground for the disposition, and it should be objectively clear that the defect violates an important statute and objectively. In determining whether the defect is significant and apparent, it is necessary to reasonably consider the purpose, meaning, function, etc. of the law that serves as the basis for the pertinent disposition and to reasonably consider the specificity of the specific case itself at the same time. A disposition of taxation on a person who does not have any legal relation or factual relations subject to taxation should be deemed to have a significant and obvious defect. However, in a case where objective circumstances exist that make it possible to believe that the legal relation or factual relations which is not subject to taxation is subject to taxation, if it is possible to accurately investigate the factual relations, it cannot be deemed that the defect is apparent even if it is serious, and thus, it cannot be deemed that the unlawful disposition of taxation that misleads the fact of taxation is void as a matter of course (see Supreme Court Decision 2011Du2723, Feb. 23, 2012).

(2) Even though ○○’s shareholder or representative director is not the Plaintiff’s shareholder or representative director as alleged by the Plaintiff, it is stated that the Plaintiff owned the shares of ○○○ shareholder on the shareholder registry of ○○○○ as above, and the representative director was registered on the corporate registry, and thus, it is reasonable to deem that the Defendant was not allowed to designate and impose as the secondary taxpayer by reliance on the Plaintiff as the oligopolistic shareholder of ○○○○, barring any special circumstance. Therefore, insofar as the legal relationship or factual relations subject to taxation are accurately examined and the substance was not revealed, there was an objective circumstance that could mislead the Plaintiff as the secondary taxpayer, barring any special circumstance. Therefore, even if the tax authority imposed tax on the Plaintiff, not the oligopolistic shareholder,

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.