National Tax Service Review and other 2010-0054 ( December 20, 2010)

It is not enough to recognize the identity theft or the name theft of the second taxpayer of the investor.

Since the status of exercising shareholder's right on the shares held by the owner is an oligopolistic shareholder, it is not sufficient to recognize that the shareholder's second taxpayer is an oligopolistic shareholder, that the shareholder's name was stolen, or that the name was registered in the name of the borrower, and thus, the disposition that the second taxpayer

Article 39(1) and (2) of the Framework Act on National Taxes

2011Guhap777 Revocation of Disposition of Imposing a national tax

Doz. Doz.

○ Head of tax office

April 27, 2011

June 08, 2011

1. The plaintiff's claim is dismissed.

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

The Defendant’s imposition of KRW 98,091,470 for corporate tax of 2004 against the Plaintiff on October 13, 2010, KRW 95,794,290 for Class A earned income in 2004, KRW 44,359,630 for value-added tax of 2004, KRW 5,741,360 for corporate tax of 2008, KRW 11,793,770 for Class A earned income in 2009, KRW 2,215,920 for each disposition is revoked.

1. Details of the disposition;

A. BB Construction Co., Ltd (hereinafter “B Construction”) was a corporation operating a construction business, and was delinquent in the sum of KRW 1,135,080,280,280, including KRW 431,550,720, the corporate tax of 2004, KRW 2004, KRW 2004, KRW 2008, corporate tax of 2008, KRW 2009, KRW 1,135,080, and KRW 280.

B. The Defendant determined that the Plaintiff is an oligopolistic shareholder of BB Construction, and determined that the Plaintiff was the secondary taxpayer for the above delinquent tax amount pursuant to Article 39(1) and (2) of the former Framework Act on National Taxes (amended by Act No. 7930, Apr. 28, 2006; Act No. 9263, Dec. 26, 2008; Act No. 9911, Jan. 1, 2010; hereinafter collectively referred to as the “former Framework Act on National Taxes”), and imposed the Plaintiff’s second taxpayer for the above delinquent tax amount under Article 39(1) and (2) of the former Framework Act on National Taxes (amended by Act No. 98,091,470; 95,794, 290, 290, 2004; hereinafter referred to as the “former Framework Act”) and imposed the Plaintiff’s second taxpayer for the payment period of corporate tax for the year 2004, 2004.

C. On November 11, 2010, the Plaintiff appealed and filed a request for review with the Commissioner of the National Tax Service. However, the Commissioner of the National Tax Service rendered a decision to dismiss the request on December 20, 2010 after deliberation by the National Tax Examination Committee.

[Ground of recognition] Facts without dispute, Gap evidence 1, 6 evidence, Eul evidence 1 to 5 (including a natural disaster), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

It is true that the Plaintiff was registered as a shareholder or director of BB Construction operated by the Yong-Nam Nam, but in fact, it was only limited to the wage earned by receiving benefits from BB Construction, and there was no payment of stock price or attendance at a general meeting of shareholders, and there was no shareholder who received dividends. Therefore, the instant disposition that deemed the Plaintiff as an oligopolistic shareholder is unlawful.

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 and (2) of the Framework Act on National Taxes shall be determined based on whether it is a member of a group owned by a majority shareholder. 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 should be proved by the tax authority through the register of shareholders, the statement of stock movement status, the register of corporate register, etc., and the fact of ownership of the stocks should be proved by the tax authority. However, even if it appears to be a majority 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 the real shareholder in the name of the year, the actual owner is not a shareholder, but it should be proved by the nominal shareholder who asserts that he is not a shareholder (see, e.g., Supreme Court Decision 2

In addition, the actual exercise of rights to shares in excess of 50/100 under Article 39(1)2(a) of the Framework Act on National Taxes does not necessarily require that the actual exercise of shareholders' rights should be carried out, but it is sufficient that the exercise of shareholders' rights to the shares held as of the date of establishment of tax liability is in a position to exercise shareholders' rights (see, e.g., Supreme Court Decision 2008Du983, Sept. 11, 2008).

2) In full view of the overall purport of the pleadings as to the instant case’s health team, Eul’s evidence Nos. 1 through 5 (including virtual numbers) and the entire purport of the pleadings, it can be acknowledged that from 2004 to 2009, the former head of BB had 5,727 shares equivalent to 27.27% of the total number of issued and outstanding shares of BB construction, and 4,773 shares equal to 22.73% of each of the Plaintiff and KimD held 72.73% of the total number of outstanding and outstanding shares, and that the formerCC was the wife of the Plaintiff, KimD was the wife of the formerCC, and the Plaintiff was registered as a director of BB construction from April 8, 2002 to March 30, 2010.

According to the above facts, the plaintiff, JeonCC, and KimD constitute relatives and other specially related persons under Article 39(1) and (2) of the Framework Act on National Taxes, and Article 20(2) through (5) of the Enforcement Decree of the same Act, and the shares of BB Construction owned by them exceed 50/100 of the total issued shares, and all of them are entitled to exercise shareholders' rights in relation to the shares owned by them, they are in a position to be entitled to exercise shareholders' rights in relation to the shares owned by them. Thus, all of them are oligopolistic shareholders under the same provision, and there is a lack of evidence to acknowledge that the plaintiff was subject to the second taxpayer of BB Construction due to their respective statements and witness testimony under subparagraphs 2 through 5 (including paper numbers), and there is no other evidence to acknowledge that the plaintiff was subject to the use of shareholder's name or the plaintiff's name

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.