[법인세등부과처분취소][공1985.9.1.(759),1133]
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 84Nu570 Delivered on October 23, 1984
Plaintiff
Head of Nam Busan District Tax Office
Daegu High Court Decision 83Gu162 delivered on January 16, 1985
The appeal is dismissed.
The costs of appeal shall be borne by the defendant.
We examine the grounds of appeal.
According to Article 39 subparagraph 2 of the Framework Act on National Taxes, a person who has secondary tax liability for a corporation is a shareholder or one limited partner, 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 whose total amount of stocks or investment of the corporation is not less than 51/10 of the total amount of issued and outstanding stocks or total amount of investment of the corporation and who is in a position to substantially control the operation of the corporation is a consistent view of the party members.
According to the court below's lawful determination, as of the date of establishment of the tax liability of this case, the non-party 1, the plaintiff 200 among the total 20,00 shares issued by the non-party 1, the plaintiff 200 shares, the non-party 2, the non-party 3, the non-party 2,80 shares, and the non-party 2,70 shares, respectively, and the plaintiff is registered as 200 shares in the register of shareholders of the above non-party 3, and is registered as the auditor of the company. However, the non-party 1 established the non-party 1 for the purpose of goods sale and brokerage brokerage, and completed the registration of incorporation of the non-party 1, the non-party 1, the non-party 2, the non-party 3, the non-party 2, the non-party 3, the non-party 3, the non-party 2, the company's promoters, who were in his residence in order to establish the form of incorporation.
Therefore, the plaintiff is an oligopolistic shareholder of the above non-party company who is not in a position to substantially control the operation of the company, as well as the fact that he does not control the operation of the company, and it cannot be seen as an oligopolistic shareholder who bears the secondary tax liability as prescribed by the Framework Act on National Taxes. Therefore, the court below's revocation of the second taxpayer designation disposition against the plaintiff by the defendant on the same purport is just and there is no error
Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.
Justices Park Jong-soo (Presiding Justice)