[1] The standard for determining whether an oligopolistic shareholder under Article 39(1)2(a) of the former Framework Act on National Taxes constitutes "the person who owns the largest number of stocks"

[2] Requirements for establishing secondary tax liability for oligopolistic shareholders

[1] Article 39 (1) 2 (a) of the former Framework Act on National Taxes (amended by Act No. 5579 of Dec. 28, 1998) / [2] Article 39 (1) 2 of the former Framework Act on National Taxes (amended by Act No. 5579 of Dec. 28, 1998)

[1] Supreme Court Decision 9Du9346 delivered on January 14, 200 (Gong2000Sang, 418), Supreme Court Decision 2001Du5354 Delivered on July 8, 2003 (Gong2003Ha, 1725), Supreme Court Decision 2002Du4723 Delivered on September 26, 2003 / [2] Supreme Court Decision 87Nu415 Delivered on July 11, 1989 (Gong1989, 1239), Supreme Court Decision 95Nu14756 Delivered on February 23, 196 (Gong196Sang, 1157)

Haak-si

The director of the tax office

Seoul High Court Decision 2002Nu7298 delivered on August 19, 2003

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

1. After compiling the adopted evidence, the court below acknowledged the facts as stated in its reasoning. The court below determined that even if the plaintiff excluded 4% of the total number of shares issued at the plaintiff's wife and 1% of the total number of shares sold at 48% (1%) and 47% of the total number of shares issued at 51% of the total number of shares issued at 56% (47%) and that the amount of 51% of the treatment pre-use corporation (hereinafter "the treatment pre-use theory") constitutes a specially related person under subparagraph 5 of Article 20 of the Enforcement Decree of the Framework Act on National Taxes and subparagraph 2 of the same Article in relation to the husband's relationship with the above 198, the plaintiff was merely an oligopolistic shareholder under the current Framework Act on National Taxes and Article 39 of the former Framework Act on National Taxes (amended by Act No. 5579 of Dec. 28, 198) and that the plaintiff's 4% of the total number of shares transferred to 44% of the above shares was not treatment of the plaintiff's shares.

Article 39(1)2 of the former Framework Act on National Taxes provides that only a person (a) who owns the largest number of stocks or invests the largest number of stocks among oligopolistic shareholders, or a person who actually controls the management of a corporation (b) shall be liable for secondary tax liability. Whether a person among oligopolistic shareholders as provided for in subparagraph (a) above falls under "a person who owns the largest number of stocks" shall be determined based on whether a group of stocks owned by the majority of the relevant corporation, which is the requirement of oligopolistic shareholders, actually exercises rights to 51/100 or more of the total number of issued and outstanding stocks of the relevant corporation (see Supreme Court Decision 2001Du5354, Jul. 8, 2003); Article 39(1)2 of the current Framework Act on National Taxes provides that, among oligopolistic shareholders, a person who actually exercises a right to the total number of stocks issued or total investment amount of the relevant corporation or a right to the stocks or investment amount of at least 51/100 of the relevant corporation [Article 2(a)].

In light of the above legal principles, related Acts and subordinate statutes, and records, the above fact-finding and judgment of the court below are just and acceptable, and there is no error of law by misunderstanding facts or misunderstanding the legal principles as to oligopolistic shareholders due to a violation of the rules of evidence.

2. In addition, according to the facts found, the court below determined that the above land was not owned at the time of delinquency in national tax payment or at the time of the instant disposition against the Plaintiff, and it does not seem that there was any property in arrears with the national tax at the time of the instant disposition against the Plaintiff, and it is difficult to expect that all delinquent national tax should be collected in the public sale procedure with respect to the land of this case, and that the transfer of ownership was registered in the name of the Plaintiff on June 14, 2000, and the transfer of ownership was completed in the name of the Plaintiff on July 12, 200, and the Republic of Korea filed a lawsuit against the Plaintiff for revocation of the fraudulent act against the Plaintiff on January 13, 2003, and the judgment in favor of the Republic of Korea became final and conclusive on January 13, 2003, and thus, the above land was not owned at the time of delinquency in national tax payment or otherwise at the time of the instant disposition against the Plaintiff.

In order to establish the secondary tax liability, it is required that the amount of shortage in collection should be the main tax liability, but once the main tax liability is delinquent, the occurrence of shortage does not necessarily require that the main tax obligor will execute the disposition of arrears in reality and cause the shortage in collection. However, if the disposition of arrears is taken, it is sufficient that the amount of shortage in collection will occur objectively (see Supreme Court Decision 95Nu14756 delivered on February 23, 1996), and even if the main tax obligor restores his own ability after the disposition against the secondary tax obligor, the validity of the disposition shall not be affected.

In light of the above legal principles and records, the above fact-finding and judgment of the court below are just and acceptable, and there is no error in the misapprehension of legal principles as to the supplement of the secondary tax liability due to incomplete deliberation, or in the misapprehension of legal principles as to the supplement of the secondary tax liability.

3. Meanwhile, the court below rejected the Plaintiff’s appeal as to the additional dues other than the instant disposition on the ground that the first instance court did not make any decision as to the revocation of the Plaintiff’s revocation claim in the first instance court, which constitutes a case where there is no judgment of the first instance court which files an appeal, and thus, it constitutes unlawful. As to this part, there is no statement in the petition of appeal or the appellate brief.

4. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Yoon Jae-chul (Presiding Justice)