Seocho 2015west 1018 ( April 13, 2013)

An oligopolistic stockholder who cannot be deemed to bear the secondary tax liability.

Since it is deemed that the original taxpayer had already transferred the stocks of the original taxpayer, it cannot be said that the secondary tax liability is the oligopolistic shareholder.

Article 39 (Secondary Liability to Pay Taxes by Investor)

2015Guhap67571 Revocation of Disposition of Imposition of Value-Added Tax

○ ○

○ Head of tax office

November 2016

on 04 October 08, 2016

1. The Defendant’s imposition of value-added tax of KRW 00,000,000 against the Plaintiff on June 27, 2014 is revoked.

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

Cheong-gu Office

The same shall apply to the order.

1. Details of the disposition;

A. On February 7, 2007, Jindo, the Plaintiff’s birth, established ○○ Den (hereinafter “○○ Den”) for the purpose of exporting and importing dental materials and wholesale and retailing. The Plaintiff, a dentist, transferred KRW 0 million to Jindo twice on February 7, 2007 and on December 12, 2007. The Plaintiff, a dentist, transferred 00,000 won to the Plaintiff. The Jindo around that time, 00 shares of 00 shares of ○○ Den, and the Plaintiff was registered as the auditor of ○○ Den on April 24, 2007.

B. The Defendant determined that ○○○○○ and 00% (0,000 shares) of 00% (0,000 shares) of ○○ Den’s shares were oligopolistic shareholders in accordance with the statement on the changes in stocks, etc. submitted to the tax authority, and that the Plaintiff was an oligopolistic shareholder. As ○○○ was in arrears with the 2-year value-added tax in 201, 201, 201, the 1-year value-added tax in 201, the 1-year corporate tax in 2012, and the 2012 corporate tax was in arrears, on July 16, 2013, the Plaintiff was designated as the secondary taxpayer and notified the Plaintiff to pay

C. When the value-added tax for the second period of 2012 that was notified to ○○ Den again was delinquent, the Defendant: (a) on June 27, 2014, notified the Plaintiff to designate the Plaintiff as the secondary taxpayer and to pay KRW 00,000,000 (hereinafter “instant disposition”). The Plaintiff dissatisfied with the instant disposition, filed an objection with the Seoul Regional Tax Office, but was dismissed on October 24, 2014; (b) again filed an appeal with the Tax Tribunal, but was dismissed on April 13, 2015.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 3, Eul evidence Nos. 1 and 2, the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

On October 4, 2010, the Plaintiff sold ○○○’s entire shares to ○○○. On June 30, 201, the Plaintiff resigned from the audit of ○○ Den on June 30, 201. Since ○○ Den does not actually engage in or control over the management of ○○ Den, the Plaintiff cannot become a secondary taxpayer of ○○ Den.

B. Relevant statutes

Framework Act on National Taxes (Amended by Act No. 12848, Dec. 23, 2014; hereinafter the same shall apply)

Article 39 (Secondary Liability to Pay Taxes by Investor)

Where the property of a corporation (excluding a corporation which has listed its stocks on the securities market prescribed by Presidential Decree; hereafter the same shall apply in this Article) is insufficient to cover national taxes, additional dues, and disposition fees for arrears that the corporation has imposed on or is to pay, any of the following persons as of the date on which the liability to pay national taxes is established shall assume secondary liability to pay the insufficient amount: Provided, That in cases of oligopolistic stockholders under subparagraph 2, the limit of the amount calculated by multiplying the amount calculated by dividing the insufficient amount by the total number of outstanding stocks (excluding non-voting stocks; hereafter the same shall apply in this Article) or total amount of investment of the corporation by the number of stocks (excluding non-voting

2. A stockholder or one limited partner and a person prescribed by Presidential Decree from among his/her related parties, whose total amount of stocks held or investments exceeds 50/100 of the total number of outstanding stocks or investments of the relevant corporation and who actually exercise the rights thereto (hereinafter referred to as " oligopolistic stockholder").

(c) Fact of recognition;

1) According to the integrated national tax computer network based on the statement of changes in stocks, etc. submitted by 00 Den to the tax authority, the current status of 00 Den is as follows.

Period

Name of shareholders

Quantity held

Ratio of Shares

207 Opening of business from 200 to 2012

○ ○

0,000

00%

00

00%

○○

00

00%

Closure of the year 2013 to 2014

○ ○

0,000

000%

2) The status of the officers in the certified copy of the register of ○○ Den is as follows.

Name

Title

Details of registration;

Date of registration;

Auditor

April 24, 2007

April 24, 2007

on March 21, 2010

April 2, 2010

June 30, 2011

September 13, 2013

○ ○

Directors

April 20, 2007

April 20, 2007

March 31, 2010

April 2, 2010

Company Directors

on March 31, 2010

April 2, 2010

May 22, 2012

September 13, 2013

○ ○

Auditor

June 30, 2011. Appointment

September 13, 2013

May 22, 2012

September 13, 2013

Company Directors

May 22, 2012

September 13, 2013

3) On October 4, 2010, the Plaintiff prepared a share transfer contract and a written confirmation confirming that the Plaintiff transferred ○○○○○ stocks of KRW 750 per share to KRW 0 million (0,000 per share) respectively. The said written confirmation is accompanied by a certified copy of the corporate register issued on September 8, 2010, and the said written confirmation and the said written copy are affixed between the two. The Plaintiff was transferred KRW 0 million from Jin○ on the same day.

4) On June 30, 2011, the Plaintiff resigned from the audit of 00 Denmark and was appointed by 00 ○○ as an auditor. The confirmation letter is accompanied by a certified copy of the corporate register of 00 Denmark published on June 30, 201, and the said confirmation letter and the certified copy of the corporate register shall be affixed.

5) On September 12, 2013, 201, this ○○○’s agent’s ○○○’s representative’s name obtained a certification of the minutes of the temporary general meeting of shareholders on June 30, 201, stating that “the Plaintiff resigned from the audit and was appointed by this ○○○○ as an auditor” from a law firm’s personal history on September 12, 2013, and was made on September 13, 2013 on the following day.

6) The 000 Denmark did not have any distribution to shareholders as a company with a small size of business, nor did it hold a regular general meeting of shareholders, etc. properly.

7) On the other hand, the letter of acceptance dated May 10, 2012, drawn up between Jindo and E-○○, stated that the Plaintiff transferred ○○○ stocks to E-○○ in one source per share.

[Reasons for Recognition] Unsatisfy, Gap evidence Nos. 4 through 6, 8, 9, Eul evidence No. 3, witness margin

○’s testimony, overall purport of pleading

D. Determination

1) Whether it constitutes an oligopolistic shareholder under Article 39(1)2 of the 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 the nominal shareholder who asserts that he is not a shareholder should prove that he is not a shareholder (see Supreme Court Decision 2003Du1615, Jul. 9, 2

2) Based on the foregoing legal doctrine, in light of the following circumstances acknowledged based on the foregoing facts comprehensively based on the overall purport of the pleadings, the Plaintiff appears to have transferred 00 Denmark stocks to ○○○ on October 4, 2010, and thus, it cannot be deemed as a shareholder of 00 Denmark during the second taxable period of value-added tax in 2012.

① On October 4, 2010, the confirmation that the Plaintiff transferred 00 shares of 000 shares of ○○ Den to ○○○○○, and the confirmation that the Plaintiff resigned from the auditor of ○○ Den on June 30, 201 and the Plaintiff was appointed as ○○○ as ○○○’s auditor on June 30, 201, are accompanied by a certified copy of the corporate register issued around that time, and the confirmation document and the certified copy of the corporate register are affixed between the above confirmation document and the certified copy of the corporate register. Therefore, it is difficult to deem that the Plaintiff prepared the above confirmation document after the fact to avoid being designated as the secondary taxpayer.

② On October 4, 2010, the Plaintiff received KRW 0 million from Jin○○ on the remittance of KRW 4,000,000 from Jin○. However, the Plaintiff cannot adequately explain the nature of the said money if it is not the purchase price of ○○ Den stocks.

③ ○○○ Den was operated mainly in a hostile state, and the Plaintiff did not receive dividends from ○○ Den and did not participate in the management of ○○ Den.

④ ○○○ Denmark appears to have failed to report the change of shareholder, the change of executive officers, etc., even if it actually existed. Moreover, on May 10, 2012, written between ○○○○ and ○○○○, stating that it was traded in one source per share, the credibility of the certificate of acceptance (Evidence B No. 3) appears to be high.

subsection (1).

3) Therefore, since the Plaintiff’s oligopolistic shareholder under Article 39 subparag. 2 of the Framework Act on National Taxes cannot be deemed to bear secondary tax liability with respect to the delinquent tax amount by 00 Denmark, the instant disposition made on a different premise is unlawful.

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is so decided as per Disposition.