[제2차납세의무자지정처분취소][공1986.2.1.(769),248]
Criteria for determining whether a corporation is a secondary taxpayer
Pursuant to Article 39 (2) of the Framework Act on National Taxes, a person with secondary tax liability of a corporation is required to be an oligopolistic stockholder who can substantially control the operation of the corporation.
Article 39 subparagraph 2 of the Framework Act on National Taxes
Supreme Court Decision 85Nu99 Decided July 9, 1985 85Nu560 Decided December 10, 1985
Plaintiff 1 and one other plaintiffs' attorney Park Young-soo, Counsel for the plaintiff-appellant
Head of Sungbuk Tax Office
Seoul High Court Decision 84Gu220 delivered on December 7, 1984
The appeal is dismissed.
The costs of appeal shall be borne by the defendant.
The grounds of appeal are examined.
Under Article 39 subparagraph 2 of the Framework Act on National Taxes, a person who is subject to secondary tax liability of a corporation is a shareholder or partner with limited liability, a relative or a related person prescribed by Presidential Decree other than them (Article 20 of the Enforcement Decree of the Framework Act on National Taxes), and requires that the total amount of its stocks or investment is at least 51/10 of the total amount of issued and outstanding stocks or total amount of investment of the corporation concerned and has a position to substantially control the operation of the corporation (see Supreme Court Decision 85Nu99 delivered on July 9, 1985).
In light of the reasoning of the judgment below, the non-party 1 was registered as an auditor or director of the non-party company, and the non-party 1 was registered as the non-party 1's representative director among the non-party 2's total 70,000 shares issued on the company's list, the non-party 2's pro rata 8,00 shares, and the non-party 1's pro rata 7,00 shares, among the non-party 1's shares issued on the company's list. The non-party 2's pro rata 2's pro rata 8,00 shares and the non-party 1's pro rata 7,00 shares are listed on the company's register. However, the non-party company is one of the above non-party 1's former directors in the face of stock ownership or management, and the plaintiffs were employed for a long-term work overseas with the electricity company, and the non-party 1 did not participate in the shareholders' meeting or the management by exercising shareholders' rights.
Therefore, the appeal is dismissed, and the costs of the appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating judges.
Justices Jeon Soo-soo (Presiding Justice)