Seoul High Court 2011Nu43012 ( May 16, 2012)

Since the secondary tax liability is established when the main taxpayer is delinquent, the time when the defendant becomes aware of the secondary taxpayer can not be seen as the starting date of exclusion period of imposition.

Y It is difficult to deem that the Plaintiff committed fraud or other unlawful act in order to avoid the secondary tax liability even though it was impossible to confirm whether the Defendant was an oligopolistic shareholder by title trust and maintenance of Y shares.

2012du13214 Revocation of revocation of designation as a person liable for secondary tax payment.

NewA

Head of the tax office;

Seoul High Court Decision 2011Nu43012 Decided May 16, 2012

October 24, 2013

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

“The Defendant asserted to the effect that the Plaintiff was the actual manager of BB (hereinafter “BB”) in the judgment of the first instance court of this case, which became final and conclusive on December 2, 2011, that the exclusion period of the second tax liability of this case expires on December 2, 2012. However, this cannot be a legitimate ground for appeal as it was first asserted in the final appeal. Furthermore, even if it is seen, the judgment of the first instance court of this case cannot be deemed to be the judgment under Article 26-2 (2) 1 of the former Framework Act on National Taxes (amended by Act No. 11124, Dec. 31, 201); thus, this part of the ground for appeal is without merit.”

With respect to the secondary tax liability borne by an oligopolistic stockholder, etc. of a corporation, the exclusion period is set separately from the primary tax liability, and the exclusion period is five years from the date of establishment of the secondary tax liability on which the secondary tax liability is assessable, barring any special circumstance. Meanwhile, in order to establish the secondary tax liability, the fact that the secondary tax liability meets the requirements, such as the delinquency of the principal taxpayer, etc., and thus, at least the “payment period of the primary tax liability” expires (see, e.g., Supreme Court Decisions 2006Du11750, Oct. 23, 2008; 2010Du13234, May 9, 2012).

In light of the above legal principles and records, since the secondary tax liability borne by the Plaintiff is established when BB, the main taxpayer, regardless of whether the Defendant was aware of the secondary tax liability, is delinquent, the judgment of the court below is just in determining that the time when the Defendant became aware of the secondary taxpayer cannot be seen as the starting date of the exclusion period of imposition, and contrary to what is alleged in the grounds of appeal, there is no error of law by misapprehending the legal principles on the initial

3. As to the third ground for appeal

The court below rejected the defendant's assertion that since the plaintiff held a title trust with shares since the incorporation of BB prior to the taxable period of the corporate tax and the value-added tax, even if BB obtained an illegal refund by abusing the zero tax rate system, the plaintiff did not receive national taxes by fraudulent or other unlawful act, there is no evidence to acknowledge that the plaintiff established BB to evade the corporate tax and the value-added tax of this case and made a title trust with shares, and even if the plaintiff made a false entry in the certificate of stock acquisition, general meeting minutes, stock acquisition agreement, and the statement of stock transfer to be submitted to the tax office, such act is merely an act constituting a stock title trust, the plaintiff's act constitutes a stock title trust, and thus, the exclusion period for imposition of ten years should apply

Examining the reasoning of the judgment below in light of the relevant legal principles and records, the above determination by the court below is just and acceptable, and contrary to what is alleged in the grounds of appeal, there were no errors of misapprehending the legal principles on the

4. As to the fourth ground for appeal

According to the reasoning of the judgment of the first instance, which was partially accepted by the court below, the court below held that since the plaintiff was the second taxpayer, as long as BB sold gold bullion to the so-called so-called company's second taxpayer, it is difficult to deem that the plaintiff evaded the plaintiff's tax by fraud or other unlawful means, and since Manaco is the whole stage of the company of the Manaco as the whole stage of the Manaco does not correspond to the company itself and was evaded the tax under the common communication with the Manaco, it is difficult to view that the 10-year period of exclusion

In light of the above legal principles and records, the above determination by the court below is just and there is no error of law by misapprehending the legal principles as to the non-existence of the secondary tax liability as alleged in the grounds of appeal.

5. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.