If the defect cannot be objectively seen as objectively clear, it shall not be deemed as void as a matter of course.

Even if there is a defect that the actual business owner of the disposition of this case is erroneous as an oligopolistic shareholder by mistake of the plaintiff as the company, and only the formal shareholder, such defect cannot be deemed objectively and objectively, and thus, it cannot be deemed null and void as a matter

Article 39 (Secondary Tax Liability of Investors)

Suwon District Court 2014Guhap51594, a lawsuit seeking confirmation of invalidity, such as a disposition imposing value-added tax

AAA et al.

00. Head of tax office

June 16, 2015

July 7, 2015

1. All of the plaintiff's claims are dismissed.

2. Litigation costs shall be borne by the Plaintiff

Cheong-gu Office

On December 3, 2013, the Defendant’s collection disposition of value-added tax amounting to KRW 000 on the second half-year value-added tax for each of the Plaintiffs on December 3, 2013 is confirmed to be null and void.

1. Details of the disposition;

A. On January 3, 2013, Plaintiff AA (hereinafter “Plaintiff”) was established for the purpose of manufacturing semiconductors and computer input devices, etc., and Plaintiff BB was registered in the registry of the Plaintiff Company as an internal director from the time of its incorporation to September 30, 2013.

B. On October 23, 2013, the Plaintiff Company scheduled the Defendant to pay KRW 000,000 for the second quarter value-added tax for the year 2013, but did not pay it. On December 3, 2013, the Defendant notified the Plaintiff Company of KRW 000 for the second quarter value-added tax in addition to KRW 000 for the second quarter value-added tax for the Plaintiff Company’s return amount.

C. The Defendant: (a) determined Plaintiff BB as the oligopolistic shareholder (100%) of the Plaintiff Company; (b) on January 9, 2014, pursuant to Article 39 Subparag. 2 of the former Framework Act on National Taxes (amended by Act No. 12848, Dec. 23, 2014; hereinafter the same), the Plaintiff Company designated Plaintiff BB as the secondary taxpayer for the amount of value-added tax for the second period portion of value-added tax 000 for the second period of 2013, and notified Plaintiff BB of the payment of the amount of delinquent taxes (hereinafter the Defendant’s imposition of value-added tax for the second period of 2013 and the collection of delinquent taxes for Plaintiff BB).

D. Since then, in 2013, 000 won out of the value-added tax for the second period portion of the Plaintiff Company’s 2013 was paid, and 000 won remains at the unpaid tax amount.

[Reasons for Recognition] Facts without dispute, Gap evidence 6-1, 2, 18-1 through 5, Eul evidence 3-1 to 3-5, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiffs' assertion

Plaintiff BB was appointed as a representative director in form when the CCC, its husband, was established, but did not have been involved in the operation of the Plaintiff Company. Since CCC received a request from the Plaintiff Company, which requested that it be allowed to conduct human resources supply business in the name of the Plaintiff Company, and only lent the name of the Plaintiff Company to DD merely. DD used the Plaintiff Company’s name and used the Plaintiff Company’s name, and all income accrued therefrom were attributed to DD. Nevertheless, since the Defendant rendered the instant disposition by determining the Plaintiffs, who were merely the nominal owner without undergoing a simple confirmation procedure on basic matters, as the Plaintiff was liable to pay taxes, the instant disposition was in violation of the substance over form principle, and the degree of its defect is significant and apparent.

B. Determination

1) In a case where there are objective reasons to believe that a certain legal relationship or factual basis that is not subject to taxation is subject to taxation, and where it can only be clarified whether it is subject to taxation or not, the relevant factual basis should be accurately examined, and even if the defect is serious, it cannot be said that it would be apparent even if it is so serious, and thus, it cannot be deemed that the illegal taxation disposition that misleads the fact that it is subject to taxation is unreasonable (see, e.g., Supreme Court Decision 2011Du22723, Feb. 23, 2012).

2) First, we examine the instant disposition against the Plaintiff Company.

In full view of the overall purport of the statements and arguments in the evidence Nos. 1 and 2 (including additional numbers) as seen earlier, the Plaintiff Company applied for registration of its business on January 7, 2013, accompanied by a real estate lease agreement, a corporation registration certificate, a shareholder list, and articles of incorporation, and obtained a business registration certificate from the Defendant. The Plaintiff Company reported to the Defendant on July 25, 2013 the first-term value-added tax of the Plaintiff on June 10, 2013. The Plaintiff Company reported the performance of withholding taxes on earned income tax and business income tax on June 10, 2013. The Plaintiff Company did not pay the second-term value-added tax of the Plaintiff Company on June 2013 but notified the Plaintiff Company of its payment. According to the above facts, it can be acknowledged that the Plaintiff Company was under objective circumstances that could mislead the Plaintiff Company as a taxpayer, such as income, and the Plaintiff Company merely lent its name to DD cannot be seen as being objectively erroneous even if it was objectively erroneous.

3) Next, we examine the instant disposition against Plaintiff BB.

According to the statement in Eul evidence 4-1, it is recognized that the plaintiff BB was registered as an internal director of the plaintiff company from the time of incorporation of the plaintiff company until September 30, 2013, and that all shares issued by the plaintiff company in the register of shareholders of the plaintiff company were entered as shareholders (10% of investment shares, 10,000,000 won of investment shares).

Therefore, even if Plaintiff BB falls under the formal shareholder of the Plaintiff Company, the Defendant, based on the shareholder list, which is a material that is widely accepted as being objectively reflected in the shareholder composition status of the Plaintiff Company in the general transaction situation, determined that Plaintiff BB constituted an oligopolistic shareholder and rendered the instant disposition from July 1, 2013 to September 30, 2013, which is the taxable period of value-added tax for the second period portion of the Plaintiff Company, and thus, Plaintiff BB constitutes an oligopolistic shareholder. Therefore, there is objective circumstance that Plaintiff BB constitutes an oligopolistic shareholder, and the circumstance that Plaintiff BB falls under a formal shareholder differently from the entry of the data such as the shareholder list, can only be clearly examined by the factual relations. Thus, even if Plaintiff BB, who is merely a formal shareholder of the instant disposition, was erroneous as a shareholder, it cannot be deemed null and void as it is objectively apparent (see Supreme Court Decision 90Nu5245, Dec. 7, 190).

3. Conclusion

Therefore, all of the plaintiffs' claims are dismissed as it is without merit. It is so ordered as per Disposition.

shall be ruled.