회사 경영에 관여한 사실이 없더라도 과점주주의 제2차납세의무에는 영향이 없음[국승]
Seoul Administrative Court 2007Guhap3832 ( April 17, 2008)
The secondary tax liability of oligopolistic stockholder shall not affect the oligopolistic stockholder even though he has participated in the management of the company.
Unless there are special circumstances such as during the company reorganization procedure, it shall be determined based on the cause of a group holding more than a majority of stocks. Specifically, even if there are no facts involved in the company management, it cannot be determined that it is not an oligopolistic stockholder, and whether an executive or employee of the company is an oligopolistic stockholder cannot affect the status of an oligopolistic stockholder.
The contents of the decision shall be the same as attached.
All appeals by the plaintiffs are dismissed.
Expenses for appeal shall be borne by the plaintiff.
Purport of claim and appeal
The judgment of the court of first instance is revoked. The defendant revoked each taxation of the value-added tax of KRW 16,976,030 on July 14, 2006 against the plaintiff Park Nam, KRW 271-added tax of KRW 54,170,320 on January 2005, KRW 13,660,630 on corporate tax of KRW 13,660,630 on corporate tax of 205, and KRW 6,790, KRW 390 on January 2005 against the plaintiff Park Jong-nam, and KRW 21,68,10 on value-added tax of February 2, 2005, KRW 5,464,240 on corporate tax of KRW 205 on corporate tax of KRW 205.
1. Quotation of judgment of the first instance;
The reasoning of this court's decision is as follows: "The court's decision was 6th 7th 7th 2006." but around June 2006." This court's decision was accepted in accordance with Article 8 (2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act, except that the plaintiffs added the following judgments as to the matters alleged in the court's decision.
2. Additional judgment;
The plaintiffs asserted that since the Kim ○-○ was entirely managing the non-party company, the plaintiffs did not intend to participate in the management of the non-party company or to use it as a means of tax avoidance or to exercise the rights as its shareholders, and that the non-party company was not in a position to participate in the management of the non-party company or to exercise the rights as its shareholders.
However, Article 39 (1) 2 of the Act and Article 20 of the Enforcement Decree of the Act stipulate that the second tax liability shall be imposed on the oligopolistic shareholder who owns not less than 51/100 of the total number of the issued and outstanding shares of a corporation. It is because it is in a position that can actually control the company's management through the exercise of voting rights through a general meeting of shareholders according to the number of the shares held. Thus, whether it is an oligopolistic shareholder under Article 34 of the Act shall be determined based on the truth, unless there are special circumstances such as during the company reorganization procedure, and it shall not be determined that it is not an oligopolistic shareholder even if it is not involved in the company management, and it shall not be deemed that there are circumstances affecting the status of an oligopolistic shareholder (see Supreme Court Decision 94Nu622 delivered on August 12, 1994), subparagraph 3, subparagraph 8-1 through 12-1, subparagraph 1 through 3-1, subparagraph 1-1, 1-2, and subparagraph 1-1 through 3 of the plaintiffs' evidence.
3. Conclusion
Therefore, the plaintiffs' claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is just in this conclusion, and all appeals of the plaintiffs are dismissed as it is without merit. It is so decided as per Disposition by the court below.