[제2차납세의무자지정등처분취소][공2008상,242]
The meaning of the proviso of Article 39 (1) and subparagraph 2 (a) of the former Framework Act on National Taxes concerning the secondary tax liability of oligopolistic stockholders
In light of the legislative purport, amendment process, etc. of Article 39 of the former Framework Act on National Taxes (amended by Act No. 8139 of Dec. 30, 2006), the meaning of the proviso of paragraph (1) and subparagraph 2 (a) of the same paragraph shall be determined by all the secondary tax liability of all the oligopolistic shareholders who actually exercise a right to more than 51/100 of the total number of issued and outstanding shares among the oligopolistic shareholders referred to in paragraph (2) of the same Article: Provided, That it is reasonable to view that the scope of liability is limited within the scope of their own shares, and it does not require one shareholder of an oligopolistic shareholder to exercise a substantial right to more than 51/10 of the total number of issued and outstanding shares.
Article 39 of the former Framework Act on National Taxes (amended by Act No. 8139 of Dec. 30, 2006)
Supreme Court Decision 2005Du8498 Delivered on December 22, 2006
Plaintiff (Law Firm Han, Attorneys Lee Ho-ho et al., Counsel for plaintiff-appellant)
Head of Seoul Customs Office
Seoul High Court Decision 2005Nu30404 delivered on November 8, 2006
The judgment below is reversed and the case is remanded to Seoul High Court.
1. Article 39(1)2(a) of the former Framework Act on National Taxes (amended by Act No. 8139, Dec. 30, 2006; hereinafter “the Act”) provides that “any person who actually exercises the rights to 51/100 or more of the total number of outstanding stocks of the relevant corporation” among oligopolistic shareholders shall be subject to secondary tax liability. Article 39(1)2(a) of the same Act provides that “The scope of liability shall be limited to the amount calculated by dividing the delinquent tax amount of the relevant corporation by the total number of stocks issued by the relevant corporation, excluding nonvoting stocks of the relevant corporation, and then multiplying by the number of stocks owned by the relevant oligopolistic shareholder who actually exercises the rights.” Article 39(1)2 of the Act provides that “any person who is a relative or other special relationship with one shareholder as prescribed by the Presidential Decree, and whose total number of stocks owned is more than 51/100 of the total number of outstanding stocks of the relevant corporation,” and Article 39(2)5(1)2)2) proviso of the Act provides that the scope of liability shall not be limited to the oligopolistic shareholder.
2. The lower court determined that the instant disposition that the Defendant designated the Plaintiff as the secondary taxpayer was unlawful on the ground that the Plaintiff did not constitute the secondary taxpayer under Article 39(1)2(a) of the Act, on the ground that the Plaintiff did not constitute the secondary taxpayer under Article 39(1)2(a) of the Act, on the ground that the Plaintiff was an oligopolistic shareholder under Article 39(2) of the Act and was practically exercising the right to shares equivalent to 30 percent of the total number of shares issued by Nonparty 1.
However, according to the facts established by the court below, as of the date when the liability for the payment of unfair refund duties, etc. was established, the plaintiff is the person who actually exercises the rights equivalent to 30/100 of the total number of stocks issued by the non-party 1 corporation. Furthermore, according to the records, the non-party 2, who is the plaintiff, as the representative director on the corporate register of the non-party 1 corporation, owns 30/100 of the total number of stocks issued and outstanding, and the non-party 3, who is the plaintiff, as the auditor on the corporate register of the non-party 1 corporation, owns 15/100 of the total number of stocks issued and outstanding, the non-party 2 and the non-party 3, who is the plaintiff, shall attend each general meeting of shareholders and participate in two times or more in capital increase with capital increase, and the above facts are examined in light of the above legal principles, it is sufficient to view that the above non-party 2 and the non-party 3, who is a relative or a special relationship with the plaintiff, has actually exercised their rights to stocks.
Nevertheless, the court below did not examine whether the above non-party 2 and the non-party 3 actually exercised their right to own stocks and determined that the plaintiff does not fall under the second taxpayer with respect to the delinquent amount of the non-party 1 corporation for the reasons indicated in its reasoning. It erred in the misapprehension of legal principles as to the second taxpayer, which did not exhaust all necessary deliberations, and it has affected the judgment.
The ground of appeal pointing this out is with merit.
3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Kim Ji-hyung (Presiding Justice)