[부가가치세등부과처분취소][공2002.5.1.(153),919]
[1] The case holding that although the "detailed statement on the change in the register of shareholders due to the transfer of stocks and equity shares was submitted at the time of the declaration of corporate tax, 51% of the company's shares were actually transferred to a third party before the date of establishment of the company's liability for tax payment, and the transfer was made also on the register of shareholders, it does not constitute the second tax liability under Article 39 (1) 2 and (2) of the former Framework Act on National Taxes at the time of establishment of the company's liability for tax payment
[2] Whether the transfer of shares before the issuance of share certificates under Article 335 (3) of the Commercial Act takes effect only by the declaration of intention of the parties (affirmative), and where a company fails to issue share certificates within six months after the date of incorporation or the date of payment of new shares, the validity of the above transfer company (effective)
[1] The case holding that although the "detailed statement on the change in the shareholder list following the transfer of shares was submitted at the time of the corporate tax return, 51% of the shares of the company was actually transferred by the former oligopolistic shareholder to a third party before the date on which the liability to pay the national tax was established, and the transfer was made also on the shareholder list, it does not constitute an oligopolistic shareholder with the secondary liability to pay the national tax under Article 39 (1) 2 and (2) of the former Framework Act on National Taxes (amended by Act No. 5579 of Dec. 28, 1998) at the time when the liability to pay the national tax was established
[2] Article 335 (3) of the Commercial Code provides that "The transfer of shares made before the issuance of share certificates shall not be effective against the company. However, this shall not apply when six months have elapsed after the date of incorporation or the date of payment of new shares." Thus, the transfer of shares before the issuance of share certificates takes effect only by the declaration of intention of the parties in accordance with the general principles as to the transfer of nominative claim. Meanwhile, even if the transfer of shares made before the issuance of share certificates or the date of payment of new shares was made at the expiration of six months after the date of incorporation or before the date of payment of new shares, if the company did not issue share certificates until the
[1] Article 39(1)2 and (2) of the former Framework Act on National Taxes (amended by Act No. 5579 of Dec. 28, 1998) / [2] Article 335(3) of the Commercial Act
[2] Supreme Court Decision 92Da16386 delivered on October 27, 1992 (Gong1992, 3261), Supreme Court Decision 94Da47728 delivered on March 24, 1995 (Gong1995Sang, 1731), Supreme Court Decision 94Da36421 delivered on May 23, 1995 (Gong1995Ha, 2226), Supreme Court Decision 96Da12726 delivered on June 25, 1996 (Gong196Ha, 2309)
Plaintiff (Attorney Jeong-hoon et al., Counsel for plaintiff-appellant)
The Director of the Pacific District Office
Seoul High Court Decision 99Nu10461 delivered on February 2, 2000
The appeal is dismissed. The costs of appeal are assessed against the defendant.
1. As to the grounds of appeal Nos. 1 and 2
The court below held that the non-party 1 corporation was established on October 17, 1995 with 10 million won (total issued shares 10,000 shares). The non-party 2 corporation was already established on the non-party 1 corporation's shareholder registry and the non-party 1 corporation's spouse was holding 3,50 shares at the time of its incorporation, and the non-party 2 corporation's non-party 9 corporation's non-party 1 corporation's non-party 9 corporation's non-party 2's non-party 9 corporation's non-party 9 corporation's non-party 1 corporation's non-party 2's non-party 9 corporation's non-party 9 corporation's non-party 1 corporation's non-party 2's non-party 9 corporation's non-party 1 corporation's non-party 2's non-party 9 corporation's non-party 1 corporation's non-party 2's non-party 9 corporation'.
In light of the records, the fact-finding and decision of the court below are just, and there are no errors in the misapprehension of legal principles as to the burden of proof as to whether the oligopolistic shareholder liable for secondary tax liability falls under the oligopolistic shareholder or any errors in the rules of evidence, the violation of the rules of evidence, the logical inconsistency, etc. In this part of the grounds of appeal are without merit.
2. As to the third ground for appeal
Article 335 (3) of the Commercial Act provides that "The transfer of shares made before the issuance of share certificates shall not be effective against the company. However, this shall not apply when six months have elapsed since the date of incorporation or the date of payment of new shares." The transfer of shares before the issuance of share certificates takes effect only by the declaration of intention of the party in accordance with the general principles concerning the transfer of nominative claims (see, e.g., Supreme Court Decisions 94Da36421, May 23, 1995; 96Da12726, Jun. 25, 1996). Meanwhile, even if the transfer of shares made before the issuance of share certificates was completed within six months after the date of incorporation or the date of payment of new shares, if the company did not issue share certificates until the date of the issuance, it is reasonable to deem that the defect is cured and thus the transfer of shares also becomes effective for the company.
In the same purport, the court below's decision that the transfer of shares of this case, which was made only with the declaration of intention between the plaintiff and the non-party 2 on March 8, 1996, before six months have passed since the non-party company was established on October 17, 1995 and did not issue share certificates until the date is not issued, is just in accordance with the above legal principles, and there is no violation of the law of misunderstanding the legal principles as to the transfer of shares before the issuance of share certificates as otherwise alleged in the ground of appeal. This part of the ground of appeal is without merit
3. Therefore, the appeal is dismissed, and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Song Jin-hun (Presiding Justice)