[제2차납세의무자지정처분취소][공1983.11.15.(716),1616]
Whether a person registered in the register of shareholders in the form of a secondary tax liability falls under an oligopolistic shareholder who bears secondary tax liability (negative)
In order to have a shareholder of a corporation bear the secondary tax liability pursuant to Article 39 subparagraph 2 of the Framework Act on National Taxes, it is required that the oligopolistic shareholder be in a position to substantially control the operation of the corporation, and on the sole basis of the fact that the register of shareholders of the corporation was registered as a shareholder, it is not possible to impose the secondary tax liability on the oligopolistic shareholder.
Article 39 subparagraph 2 of the Framework Act on National Taxes
Supreme Court Decision 80Nu403 Delivered on January 13, 1981, 82Nu8 Delivered on September 28, 1982
Plaintiff 1 and one other
Head of Seodaemun Tax Office
Seoul High Court Decision 82Gu244 delivered on April 13, 1983
The appeal is dismissed.
The costs of appeal shall be borne by the defendant.
The grounds of appeal are examined.
According to Article 39 subparagraph 2 of the Framework Act on National Taxes, in order to impose secondary tax liability on the shareholders of a corporation, it is required to be in a position to substantially control the operation of the corporation as an oligopolistic shareholder. The mere fact that the shareholder registry is registered as an oligopolistic shareholder in the form of corporate registry is not possible to impose tax liability on the oligopolistic shareholder immediately (see, e.g., Supreme Court Decision 80Nu403, Jan. 13, 1981; Supreme Court Decision 82Nu8, Sept. 28, 1982). According to the reasoning of the judgment of the court below, the court below held that, in order to meet the requirements under the Commercial Act at the time of its establishment, the non-party 1 and the non-party 2 were jointly invested in a company established by the non-party 1 and the non-party 3, etc., and that the plaintiff 2 did not attend the shareholders' meeting as at the time of its establishment or that the non-party 1 was newly registered in the above company's name and the shares acquired by the non-party 1 and the non-party 3.
Therefore, the appeal is dismissed, and the costs of the appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.
Justices Kim Jung-soo (Presiding Justice) and Lee Jong-young's Lee Jong-young