[1] The method of determining whether a case constitutes "a person who actually controls the management of a corporation" under Article 39 (1) 2 (b) of the Framework Act on National Taxes

[2] The case holding that "a person who actually controls the management of a corporation" under Article 39 (1) 2 (b) of the Framework Act on National Taxes and the case holding that such person does not fall under such case

[1] Unlike the interpretation prior to the amendment, whether a person who actually controls the management of a corporation under Article 39 (1) 2 (b) of the Framework Act on National Taxes (amended by Act No. 4672 of Dec. 31, 1993) is a member of a group holding stocks of the majority regardless of whether the person actually controls the management of the corporation is involved in the management of the corporation should be determined depending on whether the person is a member of the group holding stocks of the majority.

[2] The case holding that "a person who has de facto control over the management of a corporation" under Article 39 (1) 2 (b) of the Framework Act on National Taxes is not applicable to this case

[1] Article 39(1)2(b) of the Framework Act on National Taxes / [2] Article 39(1)2(b) of the Framework Act on National Taxes

[1] Supreme Court Decision 97Nu5930 decided Oct. 13, 1998 (Gong1998Ha, 2711)

Plaintiff 1 and two others

Samsung Head of Samsung Tax Office

Seoul High Court Decision 97Gu3523 delivered on June 25, 1998

The lower judgment against Plaintiff 2 and 3 is reversed, and this part of the case is remanded to the Seoul High Court. Plaintiff 1’s appeal is dismissed. The costs of appeal against the dismissed appeal are assessed against the said Plaintiff.

1. Summary of the judgment below

The court below held that, even if the defendant imposed corporate tax amount of KRW 348,892,890 on the non-party 1 company for the business year 194 and additional tax amount of KRW 21,631,350 on the non-party 1 company, the non-party 1 company in arrears was designated and notified the second taxpayer on February 9, 1996, and the non-party 1 is the husband of the non-party 2 and the non-party 1 and the non-party 2 were their children, the non-party 2 among the shares issued by the non-party 1 company in the non-party 34,97 shares (50%) and the non-party 1 did not own the plaintiff 1's shares under the name of the non-party 1 company's oligopolistic shareholder and the non-party 2 company's oligopolistic shareholder's name, and the non-party 1 did not own the plaintiff 1 and the non-party 2 company's shares under the name of the non-party 1 company.

2. Judgment on the appeal by Plaintiffs 1 and 3

Unlike Article 39 (1) 2 of the Framework Act on National Taxes (amended by Act No. 4672 of Dec. 31, 1993), which applies to the disposition of notice of payment of this case, Article 39 (1) 2 of the same Act provides that, unlike Article 39 (2) of the same Act prior to the amendment imposes secondary tax liability on all oligopolistic shareholders, only those who own the greatest number of stocks or investments among oligopolistic shareholders, those who actually control the management of a corporation (b) and those who live together with those referred to in items (a) and (b) of the same subparagraph (c) shall be subject to secondary tax liability. The above items (c) and (d) of the same Article provide that only those persons who live together with those referred to in items (a) and (b) of the same Article among oligopolistic shareholders shall be subject to the above disposition of payment of this case, and all of the above plaintiffs are not those who own the largest number of stocks of non-party 1, and thus, they shall be subject to the above disposition of payment of this case.

However, in light of the legislative intent of the above provision of the Framework Act on National Taxes, the issue of whether the above provision constitutes "a person who actually controls the management of the corporation" under item (b) above shall be determined depending on whether the above provision is a member of the majority of the group of stocks regardless of whether it is specifically involved in the management of the corporation or not (see Supreme Court Decision 97Nu5930 delivered on October 13, 1998), unlike the interpretation of the provision prior to the amendment, whether the above provision is a member of the group of stocks owned by the majority, and whether the above person actually controls the management of the corporation based on the individual oligopolistic stockholder (see Supreme Court Decision 97Nu5930 delivered on October 13, 198), which the court below recognized the above plaintiffs as the children of the non-party 2, who is the representative director, and is registered as a director in the corporate register, and the fact that the non-party 2

Nevertheless, the lower court determined that the said Plaintiffs constituted a secondary taxpayer regardless of whether they are specifically involved in the management of the company solely on the ground that the said Plaintiffs constituted an oligopolistic shareholder who actually owns the stocks of Nonparty 1. In so doing, the lower court erred by misapprehending the legal doctrine on secondary tax liability of oligopolistic shareholders, or by failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment. Therefore, the allegation contained in

3. Judgment on Plaintiff 1’s appeal

According to the facts established by the court below, the above plaintiff is an oligopolistic shareholder who owns all the shares of the non-party 1 as an auditor of the non-party 1, and the non-party 2 is registered as an auditor of the non-party 1. The non-party 2 is aware of the fact that the non-party 1 owns the deposit assets of 114 billion won to the non-party credit cooperative and that the non-party 1 would sell shares in cash in a lump sum, and in collusion with the above credit cooperative with the using country of the above credit cooperative's representative director, the non-party 1 would sell the shares in a lump sum, and three false deposit passbooks as if the above bank was deposited in the above credit cooperative with the non-party 1 as price for purchase of shares and the above plaintiff's entire shares were acquired with the above non-party 1's company as part of the deposit deposit account at the time of cancelling the contract, and the remaining amount and the non-party 1's company's fixed assets were purchased with the above non-party 1's company's company's principal office as it purchased the above real property (building).

Therefore, we cannot accept the above plaintiff's ground of appeal that there is an error in the judgment of the court below.

4. Conclusion

Therefore, the judgment of the court below against the plaintiff 1 and 3 is reversed, and this part of the case is remanded to the court below, and the plaintiff 1's appeal is dismissed, and it is so decided as per Disposition with the burden of litigation cost.

Justices Lee Don-hee (Presiding Justice)