(b) The burden of proving the holding of shares;

B. The fact of ownership of shares is to be proved by data such as a list of shareholders, a statement of stock transfer and a list of corporate register, etc. by the tax authorities. However, in the case where there are circumstances, such as that even if a shareholder appears to be a single shareholder in light of this data, the actual owner was stolen from the name of the shareholder or registered in a name other than the name of the real owner, the nominal owner, who asserts that he is not a shareholder, should be proved

Article 39 subparagraph 2 of the Framework Act on National Taxes (amended by December 31, 1993) and Article 20 of the Enforcement Decree of the same Act provide that a group of stockholders holding not less than 51/10 of the total issued and outstanding stocks of a corporation shall be an oligopolistic stockholder and impose secondary tax liability for such oligopolistic stockholder. This is because it is the fact that the company is in a position of de facto control through the exercise of voting rights through a general meeting of shareholders according to the number of stocks held by the oligopolistic stockholder (However, the amendment of December 31, 1993 is limited to the secondary taxpayer, but only a specific person is limited to the oligopolistic stockholder, but not applicable to this case). Thus, the issue of whether a person is an oligopolistic stockholder under the above provision of the same Act shall be determined based on the truth unless there is a special circumstance (such as the company reorganization procedure).

In addition, the fact of ownership of shares should be proved by the tax authority through the data such as the list of shareholders, the statement of stock transfer, the register of corporate register, etc. However, even if it appears to be a single shareholder in light of the above data, where there are circumstances such that the actual shareholder was stolen or registered in the name other than the real shareholder registration, the actual shareholder cannot be deemed to be the above shareholder only, but the nominal owner who asserts that he is not a shareholder should prove that he is not a shareholder (see, e.g., Supreme Court Decision 91Nu1004, Nov. 12, 1991; Supreme Court Decision 91Nu1721, Jul. 23, 191; Supreme Court Decision 88Nu9268, Nov. 28, 1989).

According to the reasoning of the judgment of the court below, the court below determined that the plaintiff could not be deemed to have actually engaged in the management of the above company in light of the fact that the plaintiff, his parents, and the married couple own the entire shares of the non-party company in the judgment of the court below, and it is clear that the plaintiff's representative director, who is the type of the plaintiff, has a full authority and operated the company, and that the shareholders' general meeting was not held, and that the plaintiff is engaged in the business, such as the plaintiff's business without taking office, and that the ratio of the plaintiff's share ownership does not exceed 10 percent of the whole company's shares.

However, as determined by the court below, if the plaintiff is an oligopolistic shareholder who holds shares in its name, it cannot be determined that the plaintiff does not actually participate in the management of the company, even if there is no specific fact that the plaintiff is an oligopolistic shareholder under the Framework Act on National Taxes, and it cannot be viewed as a circumstance that the plaintiff affects the status of an oligopolistic shareholder.

On the contrary, the lower court, which concluded otherwise, that the Plaintiff is not an oligopolistic shareholder, erred by misapprehending the interpretation and application of Article 39 subparag. 2 of the former Framework Act on National Taxes, and accordingly, has a reason to point this out.

Therefore, the judgment below is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Jong-sik (Presiding Justice)