[제2차납세의무자지정처분등취소][공1993.10.1.(953),2461]
Whether a company’s refusal to comply with a request for delivery of stock certificates constitutes Article 40(1)1 and 2 of the Framework Act on National Taxes
Even if a company did not issue share certificates, Article 335(2) of the Commercial Act provides that the company may effectively transfer its shares in relation to the company when six months have elapsed since the incorporation of the company or the date of payment on new shares. Thus, the mere fact that the company refuses to issue and deliver share certificates without issuing share certificates does not constitute a case where the transfer of shares is restricted pursuant to Article 40(1)2 of the Framework Act on National Taxes, and the above circumstances do not constitute Article 40(1)1 of the same Act on the ground that there are no such circumstances.
Articles 40(1)1 and 40(1)2 of the Framework Act on National Taxes
[Plaintiff-Appellant] Plaintiff 1 and 2 others (Law Firm Gyeong, Attorneys Lee Dong-young et al., Counsel for plaintiff-appellant)
Samyang Industrial Development Co., Ltd. and three others, Counsel for the defendant-appellant-appellee)
Head of Cheongju Tax Office
Seoul High Court Decision 91Gu24696 delivered on March 3, 1993
The appeal is dismissed.
The costs of appeal are assessed against the defendant.
1. Determination on the first ground for appeal by Defendant Litigation Performers
The court below found that the oligopolistic shareholder of the plaintiff company failed to pay national taxes to the plaintiff company; the remaining attached property except the plaintiff company's shares owned by the above non-party as of December 20, 1989; the defendant requested the plaintiff company to issue and deliver the share certificates to the plaintiff company on October 16, 1990 to sell the shares owned by the above non-party; although the plaintiff company had already issued the share certificates and delivered them to the above non-party, the plaintiff company did not receive the share certificates; the plaintiff company's office and the non-party's house and the non-party's office located in the non-party foundation, the non-party company's company's main office and the non-party company's office located in Cheongdong-dong, the head of which are the non-party company's chairperson, but the defendant did not find the above share certificates for the plaintiff company's sale of the above non-party's share certificates on the ground that it did not constitute the non-party company's second tax liability under Article 40 (1) of the Framework Act.
Article 40(1) of the Framework Act on National Taxes provides, where a corporation imposes secondary tax liability on the national tax additional dues and disposition fee for arrears that it shall pay by a general partner or oligopolistic stockholder (the investor). Even if the Government intends to sell stocks or investment shares owned by investors through public sale or private contract, when there is no person wishing to purchase them (Article 1(1)) and the investors’ stocks or investment shares are restricted by law or the articles of incorporation of the corporation (Article 1(2). If the Plaintiff Company issued the share certificates, it is evident that the Plaintiff Company refused to request the Plaintiff Company to issue and deliver the share certificates on the Non-Party’s stocks, but it cannot be deemed that the transfer of shares under the above provision is limited by the reason that the Plaintiff Company refused to issue the share certificates, and even if the Plaintiff Company did not issue the share certificates, such transfer of shares can be effective after the date of incorporation or the date of payment of new shares, and thus, the Plaintiff Company cannot be deemed to constitute a limited transfer of shares under Article 19(1)9(2)1)9 of the Framework Act.
The general rules of the Framework Act on National Taxes (4-2-21.40) merely provides administrative rules within the tax authority with guidelines for interpretation and enforcement of the tax-related Acts. It is not likely to affect the above conclusion.
Although the reasoning of the judgment below is somewhat insufficient, it is just to conclude that the circumstance alleged by the defendant does not constitute a case under Article 40(1)1(b)2 of the Framework Act on National Taxes, and thus, it cannot be viewed as a legitimate ground. Thus, we cannot accept the argument that the judgment below erred by misapprehending the legal principles on Article 40(1)1(b) of the Framework Act on National Taxes and Article 51 of the National Tax Collection Act, thereby failing to properly conduct
2. Determination on the ground of appeal No. 2
In short, the theory is merely merely a failure to properly examine the original judgment or criticism that there is an error of law by misunderstanding the legal principles, and thus, it is difficult to accept the guidance.
3. Therefore, the defendant's appeal is dismissed and the costs of appeal are assessed against the losing defendant. It is so decided as per Disposition by the assent of all participating Justices.
Justices Yoon-young (Presiding Justice)