[1] The meaning of oligopolistic stockholder with the secondary tax liability of a corporation

[2] The case holding that even if a person falls under an oligopolistic stockholder in the form of an oligopolistic stockholder, a person who does not actually make any investment and does not have the shareholder's exercise of power shall not be obliged to pay secondary tax liability for the corporation

[1] The oligopolistic shareholder who has secondary tax liability for a corporation must be interpreted by limiting it to "a person who can use the corporation as a means of tax avoidance by exercising substantial control over the management of the corporation, i.e., a person who actually controls the management of the corporation or a person who actually exercises a right to more than 51 percent of the total issued and outstanding stocks of the corporation".

[2] The case holding that if it is necessary to satisfy the number of promoters who are required to establish a stock company under the Commercial Act and request a person who is not an actual investor to lend the name of shareholders and directors, thereby establishing a non-party company which is de facto one person who borrowed the certificate of the personal seal impression and seal, and registering it in the corporate register, the above company cannot be deemed a secondary taxpayer for delinquent national taxes, even if the above company is an oligopolistic shareholder if it is a person who actually controls the management of the above company or a person who actually exercises rights over 51/100 or more of the total issued and outstanding shares of the company and the above company is a person who acquired the above company's shares through the certificate of the personal seal impression and the certificate of the personal seal impression for shareholder verification and submitted it to the competent tax office.

[1] Article 39(1) and (2) of the Framework Act on National Taxes / [2] Article 39(1)2(d) and (2) of the Framework Act on National Taxes; Article 20 subparag. 4 and Article 20-2 of the Enforcement Decree of the Framework Act on National Taxes

[1] [2] Supreme Court Decision 89Nu1384, 1391 delivered on July 24, 1990 (Gong1990, 1808) and Supreme Court Decision 90Nu4235 delivered on September 28, 1990 (Gong1990, 2213) / [1] Constitutional Court Decision 93Hun-Ba49, 94Hun-Ba38, 41, 95Hun-Ba64 delivered on June 26, 197; Supreme Court Decision 94Nu797 delivered on January 20, 195 (Gong195Sang, 930)

Park head (Attorney Kim Sung-sung, Counsel for the plaintiff-appellant)

Head of Dong Daegu Tax Office

On December 5, 1994, the defendant designated the plaintiff as the secondary taxpayer of Seog Electrical Co., Ltd. and revoked the disposition imposing the plaintiff the tax amount of KRW 465,534,190, including corporate tax of the same company.

Litigation costs shall be borne by the defendant.

The same shall apply to the order.

1. Details of the instant taxation disposition

The following facts are either disputed between the parties, or acknowledged by the parties as a whole in the descriptions of Gap evidence 1-1-2, 3, Gap evidence 2-2, Eul evidence 13-1-5, Eul evidence 1-2, and Eul evidence 1-2, and there are no objections.

A. On July 2, 1992, the non-party Young-gu Co., Ltd. (hereinafter referred to as the "non-party Co., Ltd.") was established with the capital of KRW 50,000,000, the total number of issued and outstanding shares was KRW 5,000, and KRW 10,000. The location of the headquarters was the 371, Dongcheon-gu, Daegu-dong, Daegu-dong. As of December 31, 1994, the plaintiff's Dong in the register of shareholders and the non-party Kim Byung-si, the representative director of the non-party Co., Ltd., was registered as the non-party Co., Ltd., Ltd., and the non-party Co., Ltd. was registered as the non-party Co., Ltd.'s head office of KRW 2,00, KRW 750, the plaintiff's wife and the plaintiff's head of the non-party Co., Ltd., the non-party No. 250, the non-party Co.

B. On November 30, 1994, the non-party company's decision of collection was made prior to the due date pursuant to Article 14 of the National Tax Collection Act, and the defendant notified three corporate taxes, five items of value-added taxes, and two items of taxes A, which were due on December 1, 1994. The defendant did not own any property owned by the non-party company. As of the date of establishing the liability for tax payment, the plaintiff, the non-party company's relative or person with a special relationship on the register of shareholders, and the above Kim Byung-si, Ba-hee, and Ba-hee owned the non-party company's 4,200 shares (84%) out of 5,00 shares issued by the non-party company's company's 5,00 shares and 51/100 of the total shares issued by the non-party company's company, and the non-party company's share amount was registered as the director of the non-party company's corporate register, and the plaintiff's tax payment notice was stated the non-party 2920.

2. Whether the instant taxation disposition is legitimate

A. The plaintiff's assertion

The plaintiff, although the plaintiff was registered as a shareholder in the register of the non-party company, the non-party company was established by making full investments in the register of shareholders of the non-party company, and the non-party company was operated by one of them. Upon the above Kim Byung-si's request that the plaintiff's name is needed for the establishment of the non-party company, the above Kim Byung- Byung consented to use the plaintiff's name in the establishment of the non-party company. The plaintiff is merely a formal shareholder who has not paid the share price and has not received dividends. Since the plaintiff did not participate in the management of the non-party company, the non-party company's taxation of this case on the premise that the plaintiff

B. Relevant statutes

Article 39(1) of the Framework Act on National Taxes provides that a person who falls under any of the following subparagraphs as of the date on which a national tax liability is established shall have secondary tax liability for such shortage. Paragraph (2) provides that "a shareholder" in Article 39(1)2 of the same Act refers to a shareholder or a relative or a person in a special relationship with such shareholder as prescribed by the Presidential Decree and whose total amount of stocks owned is not less than 51/100 of the total amount of issued stocks of the juristic person concerned. Article 20 subparagraph 4 of the same Act provides that "a paternal and his spouse within the second degree of relationship with such juristic person" in Article 39(2) of the Act refers to a relative or a person who has a special relationship with such juristic person as prescribed by the Presidential Decree, and Article 20-2 provides that "an officer prescribed by the Presidential Decree" in Article 39(1)2(d) refers to a person who actually participates in the management of the juristic person, such as the president, vice president, director, director, etc.

In full view of the provisions of the above related Acts and subordinate statutes, the oligopolistic shareholder who has secondary tax liability of a corporation shall be construed as "person who can use the corporation as a means of tax avoidance by exercising substantial control over the management of the corporation, i.e., "person who actually controls the management of the corporation" or "person who actually exercises the rights to at least 51/10 of the total amount of issued and outstanding stocks of the corporation concerned" (see Constitutional Court Order 93HunBa49, 94HunBa38, 41, 95HunBa64, Jun. 26, 197). However, solely on the ground that the shareholder registry was registered or reported in the form of the shareholder registry, the oligopolistic shareholder cannot be held liable to pay taxes.

C. The following facts are as follows: Gap evidence 3-1, 2, 4-1, 5-2, 5-1, 2, 3, 5-6, Gap evidence 7, 8, 9, 10-1, 2, 14-1 through 15, 15-1, 15-2, 16-1 through 5, 17-1, 5, 8, 20, 21-1 through 8, 4, 5, 6-1, 3, 7, 7-1, 7, 7, and 15-1, 15-2, 16-1 through 5, 17-1, 8, 20, 24-1 through 8, 4, 5, 6-2, 3, 7, 8-1, 7, 3, 8-2, 7, 3, 3, 5's testimony and 5-2, 3, and 5-

(1) On June 20, 1982, Kim Byung-jin opened the sales business of electric products, etc. with the name of the Plaintiff’s name on November 1, 1982, and sold it by supply of Kim Jong-chul, etc. from the Nonparty Co., Ltd., and agreed to issue a tax invoice in the name of the same company as to the sales of other locations without issuing a tax invoice, and accordingly, issued a tax invoice in the name of the Plaintiff Co., Ltd. on the sales of the other locations. Accordingly, he decided to open a new business in order to distribute the sales revenue so that the sales revenue would be too much high, by issuing a false tax invoice in order to meet the sales revenue, thereby opening a new business in the name of the Plaintiff Co., Ltd., Ltd., which is the name of the Plaintiff Co., Ltd., Ltd., and substantially closed the business in the name of the Plaintiff Co., Ltd., which was the Plaintiff Co., Ltd., Ltd., with the name of the Plaintiff Co., Ltd., Ltd., and established the Plaintiff Co., Ltd. as the Defendant 2 and the Plaintiff Co.

(2) In establishing a non-party company, Kim Byung-jin requested the Plaintiff to lend the name of shareholders and directors, which is necessary to satisfy the number of promoters who are the requirements for the establishment of the non-party company under the Commercial Act, and borrowed the certificate of the personal seal impression and seal from the Plaintiff, and also establish the non-party company, which is the de facto one company, and registered the Plaintiff in the corporate register. The Plaintiff acquired 750 shares of the non-party company and submitted a certificate of shareholder investment as if the Plaintiff invested 7,500,000 shares of the non-party company, using the certificate of personal seal impression and the certificate of personal seal impression for shareholder verification received from the Plaintiff and submitted it to the Defendant. In fact, the Plaintiff borrowed 50,000,000 won as a lump sum of the incorporated capital and paid the shares as a lump sum, and withdrawn the shares paid in the non-party company immediately after the incorporation of the non-party company.

(3) As above, the Plaintiff accepted the Plaintiff’s use of the Plaintiff’s name in establishing a non-party company with the intent of providing convenience for the establishment of the non-party company by Kim Byung-si, and did not make any investment, as well as the general meeting of shareholders, and did not participate in the exercise of shareholder’s authority or the operation of the non-party company’s officers, and did not have been paid as a shareholder of the non-party company, and there was no limit of working as an employee of the non-party company, and the Kim Byung-si paid KRW 1,980,000 to the Plaintiff between October 1, 1993 and December 31, 1993, but in fact, the Plaintiff prepared a tax withholding receipt for wage and salary income and submitted it to the Defendant.

D. According to the above facts, even if the Plaintiff is registered as a shareholder in the register of shareholders of the non-party company as of the date when the liability to pay the national tax of this case was established and constitutes an oligopolistic shareholder in the form of an oligopolistic shareholder, the Plaintiff cannot be deemed as a person who actually controls the management of the non-party company or a person who actually exercises the right to more than 51 percent

E. Accordingly, the Defendant’s taxation disposition in this case, which deemed the Plaintiff as the oligopolistic shareholder under Article 39(1)2(d) and (2) of the Framework Act on National Taxes and Article 20-2 of the Enforcement Decree of the same Act, is unlawful, by deeming the Plaintiff as the secondary taxpayer for the pertinent national tax in arrears and imposed and notified the Plaintiff’s delinquent tax.

3. Conclusion

Therefore, the plaintiff's claim of this case seeking the revocation of the taxation disposition of this case is justified, and the costs of lawsuit are assessed against the losing party. It is so decided as per Disposition.

Judge Lee Dong-dong (Presiding Judge)