Cho Jae-20O-Seoul Government-2782 (20O. 03.23)

In the case of a trust, the ownership is entirely transferred to the trustee.

In the case of trust, since ownership is fully transferred to the trustee, even if the trustee restricted the trustee's authority through the trust contract, the trustee can still exercise full rights.

Article 39 (Secondary Liability to Pay Taxes by Investor)

20Opoly 62907

O-to-land

O Head of tax office

April 12, 2018

May 24, 2018

1. The Defendant’s imposition of each disposition on each of the notice dates for payment in the attached Form 1 that the Defendant reported to the Plaintiff shall be 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. The Plaintiff, as a comprehensive construction company, was decided to commence rehabilitation proceedings 200O.O.O.O. Seoul Rehabilitation Court 200O.O.O.O.O.O.O.O. decision to terminate rehabilitation proceedings (hereinafter “Plaintiff, regardless of the commencement and termination of rehabilitation proceedings”).

B.O tour Co., Ltd. (hereinafter referred to as "OO tour") is a company operating tourist hotel business, etc., and was delinquent in total of 1,OO,OO, andOO(including additional taxes) including corporate tax for 20O business years as listed below.

C. The statement of changes in stocks, etc. for 20O or 20O or 20O or 20O of the O tourism stated that the Plaintiff holds 20O or 20O or 20O or 20O or more registered common shares issued by the Plaintiff for each business year (hereafter referred to as "share of 95.O.%"; hereinafter referred to as "share of 20O or 20O or 20O or more") and each registered common shares issued by the O tourist for each business year.

D. The Defendant: (a) during four times fromO.O. toO. 20O. O. 20O. O. 20O. O. 200; (b) prior to the amendment by Act No. 11124, Dec. 31, 201; (c) prior to the amendment by Act No. 11845, May 28, 2013; (d) prior to the amendment by Act No. 11845, Dec. 28, 2013; (b) the corporate tax for each business year of 20O, 20O, 200, 200, 200, 200, 200, 200, 200, 200, 200, 200, 20, 20, 200, 20, 200, 200, 200.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 9, 10, Eul evidence Nos. 1 through 3, 5 (including each number), the purport of the whole pleadings

2. Whether the disposition is lawful;

From 20O.O. to 20O.O.O. to 20O.O.O., pursuant to the securities trust agreement, the ownership was transferred to the O bank, which is the trustee, and the O bank actually exercised its rights. Therefore, the Plaintiff is not an oligopolistic shareholder of the O.O. at the time of the establishment of each tax liability for the amount in arrears of this case, and on a different premise, the instant disposition that the Plaintiff designated the Plaintiff as the secondary taxpayer and notified the amount in arrears of this case is unlawful.

B. Relevant statutes

Attached Form 2 is as shown in the relevant statutes.

(c) Fact of recognition;

1) The Plaintiff entered into a loan agreement with 200O.O.O.O.O.O., and received O or O0 billion won from an O or other financial institution (hereinafter referred to as "O or other financial institution") to raise business funds, and concluded a trust agreement with an O,OO, or OO's owner (hereinafter referred to as "the instant trust agreement") on the issues of the Plaintiff issued by O or tourism for securing the above loan claims as trust property, the first beneficiary is the lender for the second beneficiary, the second beneficiary for the second beneficiary for the O, such as O,O,OO, or other O, and the third beneficiary for the third beneficiary for the trust period, fromO to 200O.O., to 200O.O., the third beneficiary for the second beneficiary for the second beneficiary, and the third beneficiary for the third beneficiary for the trust agreement with the O bank that is the representative bank of the delegation for the trust agreement (hereinafter referred to as "the instant trust agreement").

2) The main contents of the instant trust agreement are as follows.

3) Under the instant trust agreement, the O bank received the share certificates of outstanding shares, and the OP completed the change of entry in the name of the O bank for the shares at issue. According to the OP’s list of shareholders, the status of the OP’s shareholders is as follows.

4) In addition, pursuant to the instant trust agreement, O tour remitted OO, OO, and OOO which were distributed to the Plaintiff during the 200 O business year to an account designated by the O bank (Article 10 of the special agreement). In addition, O tour sent to the O bank a notice of the holding of the regular meeting of shareholders held between OO andOOO, which was held during the 200 O.O. throughO. 20O.O.O. andO. 20O.O., and sent an official door requesting for consent in relation to the exercise of voting rights, and OB bank sent an official door to O tourist and approved the opening of the general meeting of shareholders.

5) The instant trust agreement was extended over O.O.O., the trustor (at the time, the Plaintiff was in existence, and thus, the administrator’s OO exercised its disposal authority; hereinafter the Plaintiff is not distinguished from the Plaintiff and the administrator’s OOO; hereinafter the same shall apply) and the first beneficiary’s consent, and the notification of the O bank, the trustee, was terminated by an O.O., and the lender was set up a pledge right for the shares at issue from the Plaintiff at the time of termination of the trust agreement.

6) Meanwhile, the Plaintiff’s audit report on the Plaintiff’s business report and financial statements for 20O or 20O or 200O is written as the specially related person holding 20O or 200O, 95.O or 95.O or 200O or 200O, or as the specially related person holding 10% of the shares of O or 100O tourism.

[Ground of recognition] The facts without dispute, Gap evidence Nos. 3 through 8, 11 through 14 (including each number), the fact inquiry results against the Obank of this court, the purport of the whole pleadings

D. Determination

1) The legislative purpose of the secondary tax liability for oligopolistic shareholders is to prevent and achieve substantial tax equality since oligopolistic shareholders, a substantial operator who actually controls the management of the company, own profits of the company, and losses therefrom are likely to go beyond the company, thereby abusing the corporate entity (see, e.g., Constitutional Court Order 93HunBa49, 94HunBa38HunBa41, 95HunBa64, Jun. 26, 1997). Therefore, in order to impose secondary tax liability on the shareholders of the corporation pursuant to subparagraph 2 of Article 39 of the Framework Act on National Taxes, it is required to be located in a position that can substantially control the operation of the corporation as oligopolistic shareholders (see, e.g., Supreme Court Decision 90Nu7821, Jun. 11, 1991).

2) In full view of the facts acknowledged earlier and the purport of the entire pleadings, the Plaintiff cannot be deemed to have been in a position to substantially control the operation of O tour during the period when the issue shares were trusted to OB under the instant trust agreement.

① The transfer of ownership of shares is made between the parties and the delivery of share certificates (Article 366 of the Commercial Act). In the case of a trust, even if a truster completely transfers ownership to the trustee via a trust agreement, the trustee still is entitled to complete rights, and the limitation under the agreement is merely a matter of violation of the agreement with the truster. The Plaintiff issued the share certificates indicating the trust property in trust with an OO bank pursuant to the instant trust agreement. The Plaintiff’s shareholder registry also issued a transfer of ownership from the Plaintiff to the O bank, as the owner of the shares at the OO tour’s shareholder registry, the O bank fully transferred the ownership of the outstanding shares by meeting the disclosure and requirement stipulated in the Trust Act. Even if the ownership of the shares was indicated as the Plaintiff, the statement on the change of shares, etc., the Plaintiff’s business report and the audit report on the financial statements, the statement on the change of shares, etc. is merely a document stating the change of the shares during the pertinent business year as part of performing cooperation obligations for tax purposes (see, e.g., Supreme Court Decision 2013Du335, supra).

② According to the terms of the instant trust agreement, the Plaintiff was unable to hold the authority to exercise voting rights to the stocks at issue pursuant to the instant trust agreement. An O bank, the trustee of the instant trust agreement, is entitled to exercise voting rights to the stocks at issue in consultation with the lender group, the first beneficiary, and may exercise voting rights to other general matters in consultation with the Plaintiff, the truster and the third beneficiary (Article 9 and Article 11 of the Special Agreement). The scope of the case where the O bank is entitled to exercise voting rights only through consultation with the first beneficiary. The main decision-making with the first beneficiary is almost rare in the scope of the case where the O bank is able to exercise voting rights to the stocks at issue. The Plaintiff has no authority to exercise voting rights to the instant case. In addition, the Plaintiff is an O bank, the subject entitled to exercise voting rights finally.

In addition, according to the contents of the instant trust agreement, the Plaintiff was unable to hold the authority to dispose of the outstanding shares in accordance with the instant trust agreement. The Plaintiff cannot dispose of the outstanding shares unless otherwise stipulated by the agreement of the lender, and may not participate in the disposal of the outstanding shares in cases where the due date for the performance of obligations under the loan agreement comes due due to the maturity or the loss of time limit (Article 9 of the special agreement). The dividends on the outstanding shares are transferred from OO Tourism to the account designated by the OO bank, which is the trustee, and are used for trust expenses or for the benefit of the beneficiary. The Plaintiff is only the third beneficiary (Article 10 of the special agreement). Ultimately, the Plaintiff cannot be deemed to have been in a position to enjoy the substantial benefit of the outstanding shares in accordance with the instant trust agreement during the period of the agreement of the instant trust agreement.

③ In cases where trust property is treated as taxation without any legal basis different from civil rights, it is necessary to pay attention in terms of clarity of legal relations and legal stability. However, the Framework Act on National Taxes does not have a separate provision that regards the person liable for secondary tax payment for oligopolistic shareholders of trust stocks as the person entrusted with business (Article 5 (1) of the Corporate Tax Act and Article 2-2 (6) of the Income Tax Act provide that the person liable for tax payment shall be the person liable for corporate tax and income tax as the beneficiary of trust property) according to the tax item. Articles 7 (1) and 107 of the Local Tax Act provide that the person liable for tax payment shall be the trustee in accordance with the legal form (Article 7 (1) and 107 of the Local Tax Act provide that the person liable for tax payment of deemed acquisition tax for oligopolistic shareholders of trust property shall be the person liable for tax payment of acquisition tax).

④ If a trustee becomes liable for secondary tax liability for the shares held in a trust, it may result in the assumption of anticipated other expenses in connection with the performance of trust affairs. However, the parties to a trust agreement may enter into a trust agreement with the assumption of such risk, and the trustee may reduce the risk by including the details related to the final tax liability between the parties in a trust agreement. The instant trust agreement provides that no tax or tax imposed on the trustee pursuant to the trust agreement does not exist (Article 12 of the Special Agreement), any tax or tax imposed on the trustee, or any tax or tax imposed on the trustee in connection with the management of trust property is paid from the trust property or paid from the truster by deducting any tax or tax imposed on the trustee (Article 10, special agreement

3) Therefore, the instant disposition based on the premise that the Plaintiff is an oligopolistic shareholder who bears the secondary tax liability is unlawful.

3. Conclusion

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