Cho High-2019-Seo-702 (20 June 20, 2019)

corresponding to the second taxpayer.

As at the date of establishment of the tax liability, it cannot be deemed that a majority of the shareholders' rights of the instant shares was not held at the time of establishment of the tax liability.

Article 39 (Secondary Liability to Pay Taxes by Investor)

2019Gudan874 Revocation of revocation of designation as a person liable for secondary tax payment.

Park ○

○ Head of tax office

October 30, 2019

November 27, 2019

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposition of KRW 13,514,50, including the value-added tax of KRW 13,500 on October 4, 2018, which the Plaintiff rendered on October 4, 2018, is revoked (it is a clerical error as of October 10, 2018).

1. Details of the disposition;

A. On December 27, 2017, the representative of AAA Management Co., Ltd. (hereinafter referred to as “AAA management company”) that conducts real estate management business had 100 shares of the non-party company (100,000 won capital, and 100% shares), and filed an application for business registration with the Defendant (a related document of December 26, 2017).

B. On October 4, 2018, the Defendant imposed 13,514,500, including value-added tax (hereinafter “instant disposition”) on the Plaintiff on the ground that “the company was in arrears with value-added tax, but the Plaintiff constitutes the secondary taxpayer” (hereinafter “the Plaintiff”).

C. The Plaintiff appealed and filed an appeal with the Tax Tribunal on January 28, 2019 on October 15, 2018, but the judgment dismissing the Plaintiff’s claim was issued on June 20, 2019.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 3, 8, 9, Eul evidence Nos. 1, 2, and 3, the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

Considering the fact that the Plaintiff agreed to transfer 50 shares out of the above shares to leB on December 26, 2017 following the incorporation of the non-party company, and the Plaintiff did not participate in the management of the non-party company and did not exercise shareholder rights, the disposition of this case by the non-party as the second taxpayer is unlawful.

B. Determination

(1) Article 39 Subparag. 2 of the Framework Act on National Taxes provides that a shareholder group holding more than 50/100 of the total number of shares issued by a corporation or the total amount of equity investment shall be deemed to be a shareholder, and imposing secondary tax liability on such shareholder is due to the fact that the shareholder group is in a position that can exercise voting rights and substantially control the company’s management according to the number of shares owned by it. Determination of whether a shareholder is an oligopolistic shareholder is a shareholder is a member of a group holding a majority of shares. Specifically, even if there is no fact in the company’s management, it cannot be determined that the ownership of shares is not an oligopolistic shareholder. Furthermore, the fact of ownership of shares is sufficient to prove it by the tax authority through the list of shareholders, the list of shareholders, or the list of shareholders’ register (see, e.g., Supreme Court Decision 2003Du1615, Jul. 9, 200), and one shareholder of an oligopolistic shareholder does not require actual exercise of voting rights by 50/100 or more.

(2) In the instant case, the following circumstances acknowledged by the purport of the statement and the entire argument of Nos. 4, 5, 6, and 4 through 9 (including branch numbers) in the Health Center, A, and B (including branch numbers), i.e., (i) the Plaintiff applied for the ownership of all shares in the Plaintiff at the time of applying for the registration of business of the non-party corporation; (ii) concluding a contract to transfer 50% of shares to leB again on the date of the application for the registration of business; and (iii) if the Plaintiff entered into an actual share transfer contract, it would be reasonable to submit the register of shareholders and the statement of changes in shares at that time, even though one year has passed from the date of transfer, it is difficult to believe that the Plaintiff’s claim that the shares were transferred to leB on December 26, 2017, retroactively after the notice of disposition was delivered to the Plaintiff; (iii) the signature and completion of the transfer contract, notarial deed, and the testimony was not made; and (iv) the Plaintiff did not have held a majority of shares at that time.

(3) Therefore, the instant disposition based on the same premise is lawful, and the Plaintiff’s above assertion is without merit.

3. Conclusion

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