A disposition of imposition without objectively apparent defect shall not be deemed to be void as a matter of course.

The fact that the Plaintiff is not a beneficial shareholder with respect to the shares of 75 percent of the shares of the instant company can be revealed only after an accurate investigation into the facts. Thus, even if there is a defect that misleads the Plaintiff as an oligopolistic shareholder, it cannot be objectively apparent that the defect is objectively apparent, and thus, such disposition cannot be deemed null and void as a matter of course.

Article 39 (Secondary Liability to Pay Taxes by Investor)

Article 55 of the Framework Act on National Taxes

2016Guhap60836 The revocation of the designation as the person liable for secondary tax payment.

○ ○

AA Head of the Tax Office

March 7, 2017

March 30, 2017

1. The part of the conjunctive claim in the instant lawsuit is dismissed.

2. The plaintiff's primary claim is dismissed.

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

Cheong-gu Office

On October 29, 2015, the Defendant confirmed that the imposition of KRW 607,530, corporate tax for the business year 2014 against the Plaintiff, KRW 42,241,660, and KRW 39,450,30, respectively, of the first fixed value-added tax for the business year 2015 against the Plaintiff is null and void.

Preliminary, each of the above dispositions shall be revoked.

1. Details of the disposition;

A. EL○○○○○○ Co., Ltd. (hereinafter “instant company”) was established on October 13, 2004, and was delinquent in corporate tax of KRW 589,840 for the business year 2014, value-added tax of KRW 41,766,150 for the first term portion in 2015, and value-added tax of KRW 38,301,270 for the first term portion in 2015.

B. The Plaintiff was registered in the National Tax Integration System as holding 100% of the shares of the instant company from 2012 to 2010, and the instant company did not have submitted a detailed statement of changes in shares, etc. since 2012 to 2015.

C. Pursuant to Article 39 subparag. 2 of the former Framework Act on National Taxes (amended by Act No. 14382, Dec. 20, 2016; hereinafter the same), the Defendant is the secondary taxpayer of the instant company pursuant to Article 39 subparag. 2 of the same Act.

Designation and payment notice of KRW 607,530 of corporate tax for the business year 2014, KRW 42,241,660 of value-added tax for the first term in 2015, and KRW 39,450,300 of value-added tax for the first term in 2015 (hereinafter “instant disposition”).

D. The Plaintiff filed an objection on January 21, 2016, but the Defendant rendered a decision of dismissal on March 2, 2016, and the said decision reached the Plaintiff on March 4, 2016. The Plaintiff filed the instant lawsuit on April 19, 2016 without undergoing the pre-trial procedure.

[Ground of Recognition] Facts without dispute, Gap evidence Nos. 1, 4-19, 20, 21, 22, 5, 6 and 7-2, Eul evidence Nos. 1 through 4 (including each number), the purport of the whole pleadings

2. Judgment as to the main claim

A. The plaintiff's assertion

Article 39 Subparag. 2 of the former Framework Act on National Taxes provides that “The secondary tax liability of an investor exceeds 50/100 of the total amount of investment, and is an oligopolistic shareholder who actually exercises his/her rights thereto.” In July 2012, the Plaintiff was holding only 25% shares by transferring 75% shares to the largest ○○, Kim○, and Lee○○○. Therefore, the instant disposition was taken against the Plaintiff, not an oligopolistic shareholder, and its defect is so serious and invalid.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

1) Whether a person falls under an oligopolistic shareholder under Article 39(1)2 of the former Framework Act on National Taxes is sufficient to prove it by the tax authority’s list of shareholders, a statement of stock transfer status, the register of corporate register, etc.; Provided, That even in cases where a shareholder appears to be a single shareholder in light of the above data, where there are circumstances, such as where a shareholder was stolen or registered in the name of a borrowed person who is not the actual owner, the actual owner cannot be deemed to fall under the shareholder, but the nominal owner who asserts that he is not a shareholder should prove that he is not the shareholder (see, e.g., Supreme Court Decision 2003Du16

According to Gap evidence Nos. 1 and 2 and the fact-finding on the law firm ○○○ of this court, on July 27, 2012, in a certificate written by a notary public by Law Firm No. 1787 on July 27, 2012, the fact that four shareholders (the plaintiff, ○○, ○○, ○○, ○○, and ○○○) attend and passed a resolution on the temporary general meeting of shareholders of the company of this case, and according to the contents of the resolution of the above general meeting of shareholders, it is recognized that the registration of appointment of director was completed on the same day.

However, evidence as mentioned above, Gap evidence 3-1, 13-17, 23-1, 4-1 through 22, and the purport of the entire argument as to Gap's 4-1 through 22, i.e., no statement on the situation of changes in stocks, etc. concerning the company of this case was submitted, and no statement on the transfer transaction of stocks or securities transaction tax was reported and paid by the plaintiff, and the plaintiff failed to submit objective evidence, such as transfer contract or payment details of transfer money, etc. which can prove the transfer transaction of stocks, and the plaintiff's act of filing a request for convening a general meeting of shareholders and submitting a complaint on the premise that the plaintiff is a shareholder holding 25% shares of the company of this case was conducted immediately before or after the disposition of this case. Thus, evidence submitted by the plaintiff alone is insufficient to deem that 75% of the shares of the company of this case was transferred to ○○, Kim○, and Lee○○○ as at the time of establishment of each tax liability for the disposition of this case.

2) Furthermore, even if the Plaintiff’s assertion on the transfer of shares is true, in cases where there are objective grounds to believe that certain legal relations or facts that are not subject to taxation are subject to taxation, and where it is possible to establish the factual basis accurately, whether it is subject to taxation can only be identified by investigating the relevant facts. As such, even if the defect is serious, it cannot be deemed apparent even if it is serious, and thus, it cannot be deemed that the illegal taxation disposition that misleads the Plaintiff into the fact of taxation requirements is null and void as a matter of course (see Supreme Court Decision 2011Du2723, Feb. 23, 2012).

Unless the statement of changes in stocks, etc. of the company of this case was submitted, the defendant continued to be an oligopolistic shareholder holding 100% of the company of this case and made the disposition of this case. Thus, there exists objective reason to believe that the plaintiff is an oligopolistic shareholder. On the other hand, the circumstance that the plaintiff is not a beneficial shareholder with respect to 75% shares of the company of this case can only be determined by the fact-finding accurate investigation. Thus, even if there is a defect that the plaintiff is erroneous as an oligopolistic shareholder in the disposition of this case, the disposition of this case cannot be deemed as null and void as it is objectively obvious that the defect is objectively apparent (see Supreme Court Decision 90Nu5245 delivered on December 7, 190). The plaintiff's primary argument is without merit.

D. Sub-committee

Therefore, the plaintiff's primary claim is without merit.

3. Judgment on the conjunctive claim

A. The defendant's main defense

As the Plaintiff did not undergo an examination or a request for adjudication under the former Framework Act on National Taxes within 90 days after receiving a written decision on dismissal of the objection on the instant disposition on March 4, 2016, the instant preliminary claim is unlawful.

B. Determination

According to Articles 55(1) through (3), 56(2), 61(1) and (2), 66(6), and 68(1) and (2) of the former Framework Act on National Taxes, any administrative litigation against a disposition under the Framework Act on National Taxes or tax-related Acts may not be filed without going through a request for evaluation or adjudgment under the Framework Act on National Taxes (hereinafter referred to as "request for adjudgment, etc.") and a decision thereon, and such request for adjudgment, etc. shall be filed within 90 days from the date the relevant disposition is known (when a notice of disposition is received, the date of receipt), and when a request for adjudgment, etc. is to be filed after filing of an objection, it shall be filed within 90 days from the date the decision on a request for adjudgment of a disposition is notified (see, e.g., Supreme Court Decision 200Du1164, Jul. 4, 200). Where a request for adjudgment, etc. for revocation of a disposition is unlawful even with its deadline for request, it shall satisfy the requirements of an appeal litigation.

However, as seen earlier, the Defendant’s decision of dismissal on the instant disposition was served on March 4, 2016 on the Plaintiff, and the Plaintiff did not go through the pre-trial procedure, such as a request for a trial, even after the lapse of 90 days from the Plaintiff. As such, the part of the conjunctive claim in the instant lawsuit is unlawful since it did not go through the pre-trial procedure.

C. Sub-committee

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

4. Conclusion

Therefore, the part of the conjunctive claim in the lawsuit of this case is unlawful and dismissed, and the main claim is dismissed as it is without merit. It is so decided as per Disposition.