Whether a minor plaintiffs can be deemed as a secondary taxpayer of the corporation of this case

The plaintiff's preliminary claim is without merit since the procedure of the previous trial was not lawfully followed. The plaintiff's primary claim is without merit, and even if there is a defect that the defendant misleads the plaintiffs as oligopolistic shareholders in the disposition of this case, it cannot be viewed that the disposition of this case is null and void objectively, and it cannot be viewed that the disposition of this case is void automatically.

Article 39 of the Framework Act on National Taxes

Daejeon District Court 2017Guhap970

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ㅁㅁ세무서장

National Rotations

December 14, 2017

1. The instant lawsuit shall be dismissed.

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

around 2011 value-added tax for the second period of February 201 by the Defendant against Plaintiff A; and

Additional dues 3,187,840 won, value-added tax 7,320,130 won and additional dues 4,435,920 won and 208

Value-added tax for 2 years each year, 1,337,820 won and additional dues 796,620 won, and value-added tax for 1 year 2012

3,393,820 won and additional dues 1,812,050 won and corporate tax 1,220,490 won and additional dues 651,490 won;

Corporate tax of 1,99,340 won and additional dues of 2009, 1,067,560 won and value-added tax of 1,209

6,016,480 won and additional dues 3,212,470 won, corporate tax of 2012 580,150 won and additional dues 117,940 won,

103,120 won and additional dues 17,850 won for wage and salary income tax in 2012, 12,710 won for wage and salary income tax in 2012 and

Additional dues 380 won, 65,520 won for earned income tax in 2012 and additional dues 1,960 won, and 2-year added value in 2012

Tax 101,260 won and additional dues 15,130 won, value-added tax for the second period, 2012, 7,252,850 won and additional dues

2,915,510 won, value-added tax for the second period of February 2, 201, imposed on Plaintiff B, and additional dues

3,187,840 won, value-added tax for 2 years, 7,320,130 won and additional dues for 4,435,920 won, and 2 years for 2 years, 2008

Value-added tax 1,337,820 won and additional dues 796,620 won, value-added tax 3,393,820 won and value-added tax 1, 2012; and

Additional dues 1,812,050 won, 580,150 won and additional dues 117,940 won, and earned income tax for 2012

103,120 won and additional dues 17,850 won, 12,710 won and additional dues 2,2012, 2012

Value-added tax for the second term portion of value-added tax 101,260 won and additional tax 15,130 won, 65,520 won and additional tax for the second term of 2012, 7,252,850 won and additional tax for the second term of 2012, 2,915,510 won, and the Plaintiff

value-added tax of 6,016,480 won and additional dues for the first term of 2009, 2009, 3,140,280 won for 2009

Corporate tax 1,99,340 won and additional dues 1,043,570 won, corporate tax 1,220,490 won and additional dues 2010

636,850 won, value-added tax for one year, 3,393,820 won and additional dues for 1,771,330 won, and corporate tax for 2012

580,150 won and additional dues 117,940 won, 103,120 won and additional dues 17,850 won, 201;

Tax on earned income in 2012 12,710 won and surcharges 380 won, and tax on earned income in 2012 65,520 won and surcharges

1,960 won, value-added tax for 2 years, 101,260 won and additional tax for 15,130 won, and 2 years for 2 years, 2012

Value-added Tax 7,252,850 won and additional dues 2,828,480 won, and 1 portion for the first period of January 2012 to Plaintiff D.

Value-added tax 3,393,820 won and additional dues 1,771,30 won, and 580,150 won and additional dues of corporate tax in 2012

17,940 won, 103,120 won and additional dues 17,850 won, and wage and salary income tax for 2012

12,710 won and additional dues 380 won, 65,520 won and additional dues for wage and salary income tax of 2012, 2012, 2012

2. Value-added tax for a period of 101,260 won and additional dues 15,130 won, and value-added tax for 2 years, 2012 7,252,850 won

Each payment of KRW 2,828,480 shall be confirmed to be null and void. The foregoing shall be preliminary.

All disposition shall be revoked.

1. Details of the disposition;

A. The purpose of the OCC Co., Ltd. (hereinafter referred to as the “instant company”) is to re-manufacture and process iron. From April 1, 2009, KK held 19,200 shares (48%) of the total number of outstanding shares of the instant company from April 1, 200, MM owned 4,80 shares (12%) and the Plaintiffs owned 1,00 shares (10%) respectively.

B. The Defendant issued a notice of correction and notification of value-added tax, corporate tax, and labor income tax to the instant company as stated in the following table [the instant company]. However, the instant company did not pay it and closed on October 31, 2012. The Defendant issued a notice of correction and notification of value-added tax, corporate tax, and labor income tax to the instant company. Accordingly, the Defendant issued a notice of correction and notification of value-added tax [A], BB], [PlaintiffCC], and [Plaintiff DD] part of the corporate tax in arrears (hereinafter “instant disposition”).

D. On January 2, 2017, the Plaintiffs filed an appeal with the Tax Tribunal on January 2, 2017, but was dismissed on May 17, 2017 on the ground that the period of request elapses and is unlawful.

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, 8, Eul evidence 1 to 3 (including paper numbers, hereinafter the same shall apply), the purport of the whole pleadings

2. Whether the conjunctive claim part among the instant lawsuit is legitimate

A. Summary of the defendant's main defense

The defendant asserts that "the part of the conjunctive claim in the lawsuit in this case does not meet the requirements for the transfer, and is unlawful."

B. Determination

1) According to Article 56(2) of the former Framework Act on National Taxes (amended by Act No. 14382, Dec. 20, 2016), an administrative litigation against a disposition under tax-related Acts cannot be filed without going through a request for examination or adjudgment and a decision thereon. An administrative litigation seeking the revocation of a disposition of taxation is subject to the necessary transfer principle, unlike the voluntary transfer principle of administrative litigation applicable to general administrative litigation, which must undergo a request for examination or adjudgment as prescribed by the Framework Act on National Taxes. In such a case, a request for examination or adjudgment is lawful. Thus, if a request for examination or adjudgment is unlawful due to the lapse of the filing period, such administrative litigation cannot be deemed as having gone through the necessary transfer procedure prescribed by the Framework Act on National Taxes (see Supreme Court Decision 90Nu8091, Jun. 25, 1991). Meanwhile, a notice of tax payment shall be served on the name and address, place of business or office (Article 8(1) of the Framework Act on National Taxes), and a person who fails to receive documents from an employee or employee (10).

2) According to the overall purport of evidence Nos. 8 and 3 of evidence Nos. 8 and 3, the notice of tax payment of the instant disposition was received by the Plaintiffs themselves, parents, relatives, employees of the management office, security guards, etc. on the date indicated in the above table [the date of service of notice to the Plaintiffs], and the Plaintiffs filed an appeal against the instant disposition with the Tax Tribunal on January 2, 2017 after the lapse of 90 days from the above date. According to the above facts of recognition, the appeal against the instant disposition is unlawful because it is apparent that the appeal is filed after the lapse of the period for request, and the preliminary claim seeking the revocation of the instant disposition is also unlawful as it does not go through a necessary transfer procedure.

Therefore, the conjunctive claim part of the instant lawsuit is unlawful.

3. Part of the claim for revocation of the disposition imposing additional dues on the main claim among the lawsuit in this case

A. If national taxes are not paid by the due date, the additional dues under Article 21 of the National Tax Collection Act are the kind of incidental dues imposed as a meaning of interest on arrears, and if national taxes are not paid by the due date without the due date for payment of the additional dues determined by the due date for payment, the additional dues shall be determined by the provisions of the above Act, and if it is possible to commence the procedure for collection, the additional dues shall be urged by the notice of demand. Thus, if the demand for payment of the additional dues is unreasonable or defects exist in the procedure, it shall be possible to object to the revocation lawsuit against the disposition. However, if the tax office has notified that the additional dues shall be collected by one month after the due date for payment, and there is no demand for the payment after the due date for payment, the additional dues shall not be imposed. Thus, the lawsuit seeking the cancellation of the additional dues shall be unlawful (see Supreme Court Decision 96Nu1627, Apr. 26, 1996). b.

Therefore, since there is no additional disposition of the plaintiffs' assertion, the part of the claim for revocation of the additional disposition of the main claim among the lawsuits in this case is unlawful as it seeks revocation of the non-existent disposition.

Of the instant lawsuits, the part concerning the claim for revocation of the imposition of additional charges is unlawful.

4. Judgment on the remaining main claims of the plaintiffs

A. Summary of the plaintiffs' assertion

The plaintiffs are merely listed in the register of shareholders as they hold 10% shares of the company of this case, because K is likely to be subject to heavy taxation in excess of the shares of the company of this case. The plaintiffs were children aged 6 to 10 years old at around 2007 established by the company of this case, and the company of this case was merely those aged 8 to 12 years old around 2009 at the time when the company of this case was donated with shares of this case. Accordingly, the plaintiffs asserted that the disposition of this case under the premise that the company of this case actually holds shares of this case is unlawful.

(b) Related statutes;

▣ 구 국세기본법(2011. 12. 31. 법률 제11124호로 개정된 것) 제39조(출자자의 제2차 납세의무) 법인(주식을 「자본시장과 금융투자업에 관한 법률」 제9조제13항제1호에 따른 유가증권 시장에 상장한 법인은 제외한다. 이하 이 조에서 같다)의 재산으로 그 법인에 부과되거나 그 법인이 납부할 국세・가산금과 체납처분비에 충당하여도 부족한 경우에는 그 국세의 납세의무 성립일 현재 다음 각 호의 어느 하나에 해당하는 자는 그 부족한 금액에 대하여 제2차 납세의무를 진다. 다만, 제2호에 따른 과점주주의 경우에는 그 부족한 금액을 그 법인의 발행주식 총수(의결권이 없는 주식은 제외한다. 이하 이 조에서 같다) 또는 출자총액으로 나눈 금액에 해당 과점주주가 실질적으로 권리를 행사하는 주식 수(의결권이 없는 주식은 제외한다) 또는 출자액을 곱하여 산출한 금액을 한도로 한다.

2. A shareholder or one limited partner and a person prescribed by Presidential Decree from among his/her specially related persons, 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.

▣ 구 국세기본법(2013. 5. 28. 법률 제11845호로 개정된 것) 제39조(출자자의 제2차 납세의무) 법인(주식을 대통령령으로 정하는 증권시장에 상장한 법인은 제외한다. 이하 이 조에서 같다)의 재산으로 그 법인에 부과되거나 그 법인이 납부할 국세・가산금과 체납처분비에 충당하여도 부족한 경우에는 그 국세의 납세의무 성립일 현재 다음 각 호의 어느 하나에 해당하는 자는 그 부족한 금액에 대하여 제2차 납세의무를 진다. 다만, 제2호에 따른 과점주주의 경우에는 그 부족한 금액을 그 법인의 발행주식 총수(의결권이 없는 주식은 제외한다. 이하 이 조에서 같다) 또는 출자총액으로 나눈 금액에 해당 과점주주가 실질적으로 권리를 행사하는 주식 수(의결권이 없는 주식은 제외한다) 또는 출자액을 곱하여 산출한 금액을 한도로 한다.

2. Determination as a shareholder or one limited partner and a person prescribed by Presidential Decree from among his/her specially related persons, whose total amount of stocks held or investments exceeds 50/100 of the total number of stocks issued or investments made by the relevant corporation and who actually exercise the rights thereto;

1) Whether a person falls under an oligopolistic shareholder under Article 39(1)2 of the former Framework Act on National Taxes (amended by Act No. 11124, Dec. 31, 2011; Act No. 11845, May 28, 2013); provided, the tax authority must prove it by the list of shareholders, the statement of stock transfer status, the corporate register, etc.; Provided, That even if a shareholder appears to be a single shareholder in light of the above data, if there are circumstances, such as by using the name of the shareholder, or by registering the name of a vehicle, other than the real owner, the actual owner does not constitute a shareholder, but the nominal owner who asserts that he/she is not a shareholder should prove it (see, e.g., Supreme Court Decision 2003Du1615, Jul. 9, 2004).

Meanwhile, in a case where there are objective reasons to believe that certain legal relations or facts that are not subject to taxation are subject to taxation, and where it can only be clarified whether it is subject to taxation by accurately investigating the relevant facts, it cannot be said that it is apparent even if the defect is serious, and thus, it cannot be deemed that the illegal taxation disposition that misleads the fact of taxation requirements is null and void as a matter of course (see Supreme Court Decision 2011Du2723, Feb. 23, 2012).

2) We examine the plaintiffs' assertion, even if the plaintiffs were not the actual shareholders of the company of this case, according to the overall purport of Gap evidence Nos. 2, Eul evidence Nos. 1 and 2 as well as the whole pleadings, the plaintiffs reported to the head of the competent tax office around July 201 that they received the shares of the company of this case. Accordingly, the plaintiffs are indicated as holding 4,000 shares of the company of this case (10% from January 1, 2009 to December 31, 209 of the business year). At the time of the first notification of the disposition of this case, the plaintiffs can have different objections from 11 years of age or older. Thus, even if they asserted as the plaintiffs, there is objective circumstance that the defendant might mislead the plaintiffs as the oligopolistic shareholders of the company of this case. Thus, even if the plaintiffs are not the beneficial shareholders of the company of this case, it cannot be viewed that the disposition of this case constitutes an oligopolistic shareholder of this case. Thus, even if there is no objective error in the imposition disposition of this case.

The plaintiffs' remaining primary claims are without merit.

5. Conclusion

Among the lawsuit of this case, the part of the conjunctive claim and the part of the claim for revocation of the additional disposition of the main claim are illegal, and thus, the plaintiffs' remaining main claims are dismissed as they are without merit.