[제2차납세의무자지정처분등취소][공1990.1.15(864),172]
Whether a person who is registered as a shareholder of a corporation has secondary tax liability (negative)
In order to erase secondary tax liability to stockholders of a corporation pursuant to Article 39 subparagraph 2 of the Framework Act on National Taxes and Article 20 of the Enforcement Decree of the same Act, it is required that the oligopolistic stockholder is in a position to substantially control the operation of the corporation as of the date on which the liability to pay delinquent national taxes is established, and the reason why the national tax is registered or reported as stockholders in the form of form cannot be
Article 39 subparagraph 2 of the Framework Act on National Taxes and Article 20 of the Enforcement Decree of the same Act
Supreme Court Decision 86Nu699 Decided April 14, 1987, Decision 87Nu215 Decided June 9, 1987, Supreme Court Decision 87Nu838 Decided December 22, 1987
[Judgment of the court below]
The director of the tax office.
Seoul High Court Decision 89Gu1614 delivered on June 14, 1989
The appeal is dismissed.
The costs of appeal are assessed against the defendant.
The grounds of appeal by the defendant litigant are examined.
Article 39 subparagraph 2 of the Framework Act on National Taxes and Article 20 of the Enforcement Decree of the same Act, in order to impose secondary tax liability on the shareholders of a corporation pursuant to Article 20 of the same Act, it is required that the oligopolistic shareholder is in a position to substantially control the operation of the corporation as of the date on which the liability to pay delinquent national taxes is established, and merely because the shareholder is registered or reported in the form of a shareholder, it is not possible to impose the liability to pay taxes on the oligopolistic shareholder (see, e.g., Supreme Court Decision 86Nu69, Apr. 14, 1987; Supreme Court Decision 87Nu215, Jun. 9, 1987; Supreme Court Decision 87Nu838, Dec. 22, 1987).
According to the reasoning of the judgment below, the court below is just in finding that the non-party 1, who is the plaintiff's punishment, was a shareholder registry of the non-party 1 from 1976 to 2, and established the non-party 1,00,000 capital based on the above company's corporate body to change its organization. The non-party 1, in fact, established the non-party 1,00,000 shares issued at the time to meet the requirement for establishment under the Commercial Act (1,000 shares per share) and 45,000 shares (5,000 shares per share), and the remaining shares were transferred to the non-party 6, including the plaintiff (5,00 shares) and the non-party 2 and the non-party 1, who was registered as the shareholder registry of the non-party company from 1976 to 1,00, and it cannot be viewed that the non-party 1 was registered as the shareholder of the non-party company, and that the plaintiff did not own shares or own shares after 1000.
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 Lee Chang-chul (Presiding Justice)