[법인세부과처분취소][집27(2)행,102;공1979.10.1.(617),12110]
Where a person becomes a specially related person under Article 67 (9) 2 of the Enforcement Decree of the Corporate Tax Act;
In order to determine whether a corporation is open to the public, it is reasonable to interpret that one shareholder and a corporation, which is a shareholder, shall be referred to in Article 67 (9) 2 of the former Enforcement Decree of the Corporate Tax Act, include not only a national but also a national who is qualified as a foreign investor under the Foreign Capital Inducement Act.
Article 67 (9) 2 of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 7464 of Dec. 31, 1974)
Attorney Song-tae, et al., Counsel for the defendant-appellant
Park Jong-soo et al., Counsel for the plaintiff-appellant
Seoul High Court Decision 78Gu306 delivered on January 24, 1979
The original judgment is reversed and the case is remanded to the Seoul High Court.
The grounds of appeal by the defendant litigant are examined.
In order to determine whether a corporation is open to the public, it is reasonable to interpret that an individual who has invested at least 50/100 in a 50/10 or more to be a shareholder corporation as well as a national who is a foreign investor under the Foreign Investment and Capital Inducement Act includes not only a national but also a national who is a foreign investor, and thus, the individual’s total investment in the capacity of the national and foreign investor should be deemed as an individual’s investment. This is because there is no ground to interpret that the individual’s exercise of shareholder rights against the shares held by the individual in the capacity of a foreign investor is limited, the individual can jointly exercise the shares held in the capacity of two or more (a stock company may be divided into shares). In this case, the lower court did not err by misapprehending the legal doctrine that the total number of shares held by the Plaintiff Company with the non-party 1, a private investor, and the non-party 1, a non-party 2, a foreign investor, as the Plaintiff’s new shares held in the capacity of the Plaintiff 1 and the new shares held in excess of 50 or more.
In light of Article 15 and Article 6, 7, 10, and 13 of the Foreign Capital Inducement Act, which provide for the reduction of and exemption from taxes on foreign-invested enterprises, the original judgment seems to be excluded from foreign-invested capital in accordance with the reasoning of the judgment, because foreign-invested capital stock has a characteristic different from domestic-invested capital stock. However, the legal provisions of the invokes against foreign-invested enterprises and the scope of exercising shareholder's right to exercise shareholder's right to exercise corporate control are not likely to have any impact on this issue. Therefore, it is because it is difficult to say that there is any legal limitation on the exercise of shareholder's right to foreign-invested capital as mentioned above, so it is not a way to prevent the individual from exercising his two-qualified stocks together.
For these reasons, the appeal is reasonable and the original judgment is not reversed, and it is so decided as per Disposition by the assent of all participating Justices.
Justices Lee Il-young (Presiding Justice)