[1] The method of determining whether a person who holds the greatest number of stocks among the 'excess shareholders' under Article 39 (1) 2 (a) of the former Framework Act on National Taxes and a person who actually controls the management of the corporation under Article 39 (1) 2 (b) of the same Act

[2] The case holding that the right to receive a written decision on the objection to the disposition imposing corporate tax sent by registered mail was delegated to the apartment security guard in case where the tenant did not raise any objection to the tenant even though the security guard received and delivered the registered mail to the tenant

[3] If a taxpayer appoints a proxy at the time of filing an objection against a taxation disposition, the legality of the act served on the taxpayer himself/herself as a written decision (legal principle)

[4] The meaning of "when a disease, which is the cause of extension of the due date under Article 2 (1) 2 of the Enforcement Decree of the Framework Act on National Taxes, is serious"

[5] The case holding that a taxpayer cannot be deemed to fall under "the case where a disease under Article 2 (1) 2 of the Enforcement Decree of the Framework Act on National Taxes is serious" in the case where the taxpayer undergoes a medical treatment due to a climatic legacy during the period for filing a request for review

[1] Unlike Article 39(1)2 of the former Framework Act on National Taxes (amended by Act No. 5579 of Dec. 28, 1998), Article 39(1)2 of the former Framework Act on National Taxes (amended by Act No. 4672 of Dec. 31, 1993), Article 39 of the same Act provides that, unlike Article 39 subparag. 2 of the same Act prior to the amendment imposes secondary tax liability on the whole oligopolistic stockholder, only those who own the largest number of stocks or investments in the oligopolistic stockholder (a) and those who actually control the operation of the corporation (b) shall be subject to secondary tax liability. In light of the legislative purport of the amendment and the legislative purpose of the second tax liability system for oligopolistic stockholder, the determination of whether the oligopolistic stockholder constitutes "any person who actually owns the largest number of stocks" among oligopolistic stockholders shall be made based on the interpretation of the provisions of subparagraph (a) above, the most formal standard for holding stocks of the oligopolistic stockholder, and whether the group of oligopolistic stockholders actually owns more than 10 percent of the total issued stocks of the corporation shall be determined.

[2] The case holding that the right to receive a written decision on the objection to the disposition imposing corporate tax sent by registered mail was delegated to the apartment security guard in the apartment security room in case where the tenant did not raise any objection to the tenant even though the security guard received and delivered the registered mail to the tenant

[3] Even if a taxpayer appointed a proxy at the time of filing an objection against a tax disposition, it shall not be deemed that the taxpayer was erroneous on the ground that he served a written decision on the objection to the tax disposition.

[4] Articles 61(4) and 6(1) of the Framework Act on National Taxes provide that "if a requester is unable to make a request for examination within the prescribed period due to a natural disaster or other causes as prescribed by the Presidential Decree, he/she may make a request for examination within 14 days from the date on which such cause ceases to exist." Article 2(1) of the Enforcement Decree of the same Act provides that "if a taxpayer or his/her family member living together with him/her is under way or is dead due to a disease or serious injury caused by his/her disease or serious injury, the taxpayer or his/her family member living together with him/her," and Article 15(1)4 of the National Tax Collection Act provides that "if a long-term medical treatment is required due to a disease or serious injury caused by his/her taxpayer or his/her family member's family member's disease, the notice of tax payment delay or decision may be notified in installments." Thus, when comparing and examining the purport and content of the Framework Act on National Taxes, and Article 15(1)4 of the National Tax Collection Act.

[5] The case holding that where a taxpayer has received a pain treatment, etc. due to a brutary legacy during the period for filing a request for review, it cannot be deemed that the disease, which is the cause of extension of the due date under Article 2 (1) 2 of the Enforcement Decree of the Framework Act on National Taxes, constitutes the case where the disease

[1] Article 39 (1) 2 (a) and (b) of the former Framework Act on National Taxes (amended by Act No. 579 of Dec. 28, 198) / [2] Article 8 of the Framework Act on National Taxes / [3] Articles 8 and 15 of the Framework Act on National Taxes / [4] Articles 6 (1) and 61 (4) of the Framework Act on National Taxes, Article 2 (1) 2 of the Enforcement Decree of the Framework Act on National Taxes, Article 15 (1) 4 of the National Tax Collection Act / [5] Articles 6 (1) and 61 (4) of the Framework Act on National Taxes, Article 2 (1) 2 of the Enforcement Decree of the Framework Act on National Taxes, Article 15 (1) 4 of the National Tax Collection

[1] Supreme Court Decision 97Nu5930 delivered on October 13, 1998 (Gong1998Ha, 2711), Supreme Court Decision 98Du12062 delivered on December 8, 1998 (Gong199Sang, 162) / [2] Supreme Court Decision 92Nu7443 delivered on September 1, 1992 (Gong1992, 2788), Supreme Court Decision 93Nu16864 delivered on January 11, 1994 (Gong194Sang, 742) / [3] Supreme Court Order 98Du3679 delivered on May 15, 198 (Gong198Sang, 1678) / [3] Supreme Court Order 92Nu7825 delivered on June 25, 197 (Gong199-278)

Plaintiff (Attorney Kim Ba-young et al., Counsel for the plaintiff-appellant)

The head of North Korean District Tax Office

Busan High Court Decision 99Nu226 delivered on July 30, 1999

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

As to the first and second points

Unlike Article 39(1)2 of the former Framework Act on National Taxes (amended by Act No. 4672, Dec. 31, 1993; hereinafter referred to as the "Act"), Article 39(1)2 of the same Act provides that, unlike those where Article 39 Subparag. 2 of the same Act prior to the amendment imposes secondary tax liability on all oligopolistic shareholders, only those who hold the largest number of stocks or have made the largest investment in the company (a) and those who have de facto control over the company's management (b) shall be subject to secondary tax liability. In light of the legislative purport of the amendment and the legislative purpose of the secondary tax liability system against oligopolistic shareholders, the determination of whether a person is the largest number of stocks among oligopolistic shareholders as mentioned in subparagraph (a) above shall be made based on the formal standard of "those who own the largest number of stocks among oligopolistic shareholders," which is the requirement of the majority of the relevant corporation's 9.2 billion won or more, and shall be made based on the determination of whether a group of oligopolistic shareholders has de facto control over the company' management 98.

In accordance with the records, the judgment of the court below that held that the plaintiff owned 70% of the total number of shares issued by the non-party 3 U.S. Electronic Industry Co., Ltd. (the non-party 12, 1996 changed to non-electronic Co., Ltd.) as non-party 30% of the total number of shares issued by the non-party 33 U.S. Electronic Industry Co., Ltd. (the non-party 2, 1996, the non-party 2, 300.)

The ground of appeal pointing this out is rejected.

In addition, the part of the judgment of the court below, which held that the disposition of this case is an illegal disposition since the plaintiff was merely an oligopolistic shareholder of the non-party company, and thus, it cannot be seen that the defect of the disposition is objectively obvious, and therefore, it cannot be seen that the disposition of this case does not constitute a disposition of invalidation as a matter of course because it is an additional and foster judgment, and thus, it does not affect the conclusion of the judgment, regardless of the right and wrong sense of the decision in regard to the importance and apparentness of the administrative disposition.

On the third ground for appeal

The court below held that on June 19, 196, the plaintiff registered his resident registration as of 1996 as Busan Dong-gu ( Address omitted) △△dong (No. 1996), living in Seoul for the treatment of new illness, etc. from May 196 to July 2, 1998, the defendant sent the notice of the disposition of this case to the plaintiff on January 22, 1997, who was residing in Seoul, sent the notice of the disposition of this case to the resident registration address by registered mail. The plaintiff was served on the 25th of the same month, and on March 24 of the same year, the plaintiff did not separately designate the person who was registered as the resident registration address, and the defendant sent the written decision to the non-party, who had received the written decision to the non-party, on April 21, 1997, to the non-party, who had received the written decision to the non-party, who had not received the written decision, to the non-party, who had received the written decision.

Furthermore, in light of the practice of receiving registered mail, etc., the lower court determined that the Plaintiff’s request for review filed on July 30 of the same year after the lapse of 60 days from the date on which the notice was received by the Nonparty, on April 23, 1997, was unlawful, on the ground that it is reasonable to view that the Plaintiff delegated the Nonparty, a security guard of ○○○○○○○○, with the authority to receive the written decision on the instant tax disposition.

In other words, the recognition and determination by the court below is just (see, e.g., Supreme Court Decisions 92Nu7443, Sept. 1, 1992; 93Nu16864, Jan. 11, 1994; 98Du3679, May 15, 1998); and there is no error in the misapprehension of legal principles as to the legality of service.

In addition, even if the court below did not have the right to receive registered mail against the non-party, the part of the judgment that held that at least if the government, an employee of the plaintiff, received a decision on the objection from the non-party, the decision shall be deemed to have been legally delivered, and thus, it does not affect the conclusion of the judgment, and thus, the ground of appeal

In addition, even if the Plaintiff appointed an agent at the time of filing an objection to the instant tax disposition, it cannot be said that the Plaintiff served a written decision on the person liable for duty payment, who is not a representative, is erroneous (see Supreme Court Order 70Ma325, Jun. 5, 1970). In this case, even if the service of the agent is a business practice of the tax office, it cannot be said that the Defendant’s assertion that the period for filing a request for review is over the business practice of the tax

Furthermore, Articles 61(4) and 6(1) of the Act provide that "if a person who requested for review is unable to make a request for review within the prescribed period due to a natural disaster or other causes as determined by the Presidential Decree, he may make a request for review within 14 days from the date on which such cause ceases to exist." Article 2(1) of the Enforcement Decree of the National Tax Collection Act provides that "if the taxpayer or his family member's family member's family member's family member's family member's family member's family member's disease or serious injury to the taxpayer's family member's family member's family member's family member's disease or serious injury, he may make a request for review within the prescribed period for review." Article 15(1)4 of the National Tax Collection Act provides that "if the taxpayer or his family member's family member's family member's family member's family member's family member's family member's disease needs a long-term treatment, the tax payment delay or decision may be notified in installments."

In light of the records, the plaintiff remains in Seoul for the purpose of the heavy wind treatment from May 1996 to July 12, 1998, and received hospitalization from November 8, 1996 to the 12th of the same month. After that, it can be known that the plaintiff had received multiple treatments due to the heavy wind, but the plaintiff was not receiving hospital treatment during the period for filing a request for examination, but received hospital treatment due to the heavy wind, so it cannot be deemed that the "the disease" under the Enforcement Decree of the Act is a serious case.

In the same purport, the judgment of the court below that the disease under the Enforcement Decree of the Act does not constitute an excessive penalty is just, and contrary to the allegations in the grounds of appeal, there are no errors in the misapprehension of legal principles as to the legality and extension of the period

The argument in the grounds of appeal on this point is not accepted.

Therefore, the appeal is dismissed, and all costs of appeal are assessed against the plaintiff. It is so decided as per Disposition by the assent of all Justices who reviewed the appeal.

Justices Kim Jong-sik (Presiding Justice)