National Tax Service Review and other201-006 (Law No. 17 May 2011)

The designation of the second taxpayer is illegal because the detailed statement on the situation of changes in stocks does not reflect the fact of holding and changing stocks properly.

In the process of the incorporation of the company, it is recognized that one promoter has accepted all shares and paid all shares by the relevant shareholder even after the capital increase. Since the statement on the state of the change of shares, etc. includes names other than the relevant shareholder, the fact of holding and change of shares is not properly reflected in the statement on the state of the change of shares, so the statement on the state of the change of stocks, etc. is deemed as

Article 39 (Secondary Tax Liability of Investors)

2011Guhap18694 Revocation of Disposition of Imposing Value-Added Tax

Maximum XX

The Director of Gangnam District Office

September 6, 2011

October 6, 2011

1. On November 6, 2010, the Defendant’s disposition imposing value-added tax of KRW 24,506,160 for the first period of 2009, which the Plaintiff designated as the secondary taxpayer of XXR Korea Co., Ltd. as the secondary taxpayer is revoked.

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

The same shall apply to the order.

1. Details of the disposition;

A. The SPus Korea Co., Ltd. (hereinafter “SPus Korea”) was established on March 1, 2006 for the purpose of running the electronic certification-related service business, and was voluntarily closed by the Defendant on June 30, 2010, and did not pay the amount of value-added tax 20,663,160 for the second year value-added tax in 2009.

B. The Defendant: (a) determined that the property of the non-party company is difficult to collect the value-added tax in arrears and the additional dues thereon; and (b) notified the Plaintiff that the non-party company should pay the value-added tax (hereinafter referred to as “the instant disposition”) under Article 39(1)2 of the former Framework Act on National Taxes (amended by Act No. 9911, Jan. 1, 2010; hereinafter the same) on July 25, 2009, which is the date on which the liability to pay the value-added tax was established under Article 39(1)2 of the former Framework Act on National Taxes (amended by Act No. 9911, Jan. 1, 2010; hereinafter referred to as “the shares”), deeming the non-party company’s shares 10,000 shares (10%; hereinafter referred to as “the shares”) as the oligopolistic shareholder of the non-party company.

C. The Plaintiff dissatisfied with the instant disposition and filed a request for examination with the Commissioner of the National Tax Service on January 31, 201, but the Commissioner of the National Tax Service dismissed the Plaintiff’s request for examination on May 17, 2011.

[Ground of recognition] Facts without dispute, Gap 1, 8 evidence, Eul 1-1, 2-2, Eul 2, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Although the Plaintiff, as an attorney-at-law, was registered as the auditor of the non-party company with the intention to take charge of legal advice for the non-party company, there was no fact that the Plaintiff acquired the shares of this case. At the time of incorporation and capital increase of the non-party company, the Plaintiff acquired the entire shares of this case, and the Plaintiff was registered as a shareholder by the number of tax agent at the time of reporting the non-party company's corporate tax for 2006 business year, the disposition of

B. Relevant statutes

It is as shown in the attached Form.

C. 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, e.g., Supreme Court Decision 2003Du1615, Jul. 9

2) According to the statement of the situation of changes in stocks, etc. (Evidence 2) of the non-party company during the business year 2006 ( March 31, 2006 - December 31, 2006), it is recognized that the plaintiff holds 10,000 shares issued by the non-party company and there is no change in the transfer, acquisition, etc. of shares of the non-party company during the business year 2006. However, according to each statement of the evidence Nos. 3 and 4 (including a natural disaster), the non-party company's incorporation process of acquiring 50,00 shares of the non-party company as promoters at the time of the non-party company's incorporation and paying 50,000,000 won to the non-party company's general shares at the time of the non-party company's establishment of the non-party company's capital increase or 200,000,000,000,000 shares issued by the non-party company.

3) Therefore, the defendant's disposition of this case is unlawful, and the plaintiff's assertion pointing this out is with merit.

3. Conclusion

The plaintiff's claim is justified and accepted.