(영문) 서울고법 1982. 12. 28. 선고 81구552 제3특별부판결 : 상고[법인세등부과처분취소청구사건][고집1982(특별편),364]
Requirements for imposing secondary tax liability to stockholders of a corporation
In order to erase the secondary tax liability to stockholders of a corporation, the oligopolistic stockholders who hold not less than 50/100 of the stocks issued by the relevant corporation under Article 39 subparagraph 2 of the Framework Act on National Taxes and Article 20 subparagraph 12 of the Enforcement Decree of the same Decree may substantially control the operation of the corporation, so long as the bank entrusted the rights to the stocks to the bank for the management and operation of the company and directly participated in the operation of the company, there is no secondary tax liability
Article 39 of the Framework Act on National Taxes, Article 20 subparagraph 12 of the Enforcement Decree of the Framework Act on National Taxes
Modern Shipping Corporation
Head of the tax office;
On October 20, 1980, the second notification of tax liability on the national tax stated in the attached list to be paid by the taxpayer non-party corporation to the plaintiff on October 20, 1980 shall be revoked.
Litigation costs shall be borne by the defendant.
The same shall apply to the order.
The Defendant: (a) deemed that Nonparty 1 was an oligopolistic shareholder holding 6.6% of the above Nonparty Company’s shares as of the date of establishing liability for tax payment on the ground that it was unable to pay the above amount of corporate tax in arrears for the above 1980s as stated in the above list of the company’s capital increase; (b) on October 20, 1980 pursuant to Article 39 of the Framework Act on National Taxes; and (c) notified the Plaintiff as the secondary taxpayer on the disposition of the above entry in the order, there is no dispute between the parties; (d) No. 5-1 of the No. 5 (Financial Statement Confirmation), No. 3 (Sheet), No. 4 (Examination Table); and (e) No. 2-1 of the above shares issued by Nonparty 2 to the above company for the above 000 company’s capital increase, and (e) No. 9 of the above shares issued by Nonparty 1 to the above company for the above 70 company’s capital increase; (e.g., the above 970 company’s shares transferred.
However, under Article 39 subparagraph 2 of the Framework Act on National Taxes and Article 20 subparagraph 12 of the Enforcement Decree of the same Act, where a stockholder or partner with limited liability is a corporation, a corporation whose stocks are not less than 50/100 of the total amount of issued and outstanding stocks, and a corporation or an individual whose stocks are not less than 50/100 of the total amount of issued and outstanding stocks of the corporation are oligopolistic stockholders, and whose assets are not less than the amount of national taxes, additional dues and disposition fee for arrears imposed on or to be imposed on or paid by the corporation, the oligopolistic stockholder of the corporation as of the date on which the national tax liability is concerned shall be subject to secondary tax liability for the shortage. The purpose of the provision imposing secondary tax liability for oligopolistic stockholders is to prevent tax evasion through the abuse of the corporation system by controlling the oligopolistic stockholder at his own will, thereby preventing the oligopolistic stockholder from benefiting from property, dispersion and transfer, and thus, the plaintiff acquired stocks and was in need of a location to substantially control the operation of the corporation, but the non-party corporation directly participated in the management of the above corporation.
Therefore, the plaintiff's claim for cancellation of the second tax obligation notification disposition is reasonable, and therefore, the lawsuit costs are assessed against the losing defendant. It is so decided as per Disposition.
Judges Park Jong-chul(Presiding Judge)