A. Requirements for secondary tax liability for oligopolistic stockholders of a corporation

(b) Decision on commencing a company reorganization procedure for the company which has an oligopolistic stockholder and secondary tax liability;

A. In order for a shareholder of a corporation to be liable for secondary tax payment as an oligopolistic shareholder, it is required that the shareholder not only meet the requirements of Article 39 subparag. 2 of the Framework Act on National Taxes and Article 20 subparag. 12 of the Enforcement Decree of the same Act as of the date of establishment of the national tax liability, but also is in a position where the shareholder can substantially control the

B. The Company A owns the amount equivalent to 50/100 of the total issued and outstanding shares of Company B, and the representative director of Company A and the amount equivalent to 21.5/100 of the total issued and outstanding shares of Company B owned by Company B. If the reorganization procedure has been decided pursuant to the Company Reorganization Act with respect to Company B prior to the date on which the liability to pay taxes has been established, the right to manage and dispose of the company’s business operations is exclusive to the receiver, and the receiver is a kind of public trustee, who is a manager of the reorganization company and its creditors and interested parties, who is a manager of the reorganization company, but is a public trustee of the reorganization company, not a representative of the reorganization company or a representative of the reorganization company, and thus, Company A cannot exercise the shareholder’s right as a major shareholder of Company A, and therefore,

(a) Article 39 subparagraph 2 of the Framework Act on National Taxes, Article 20 subparagraph 12 (b) of the Enforcement Decree of the same Act, and Articles 53 and 129 of the Company Reorganization Act;

Seoul High Court Decision 2001Na14488 decided May 1, 200

Head of Hongsung Tax Office

Seoul High Court Decision 87Gu1391 delivered on October 7, 1988

The original judgment shall be reversed and the case shall be remanded to the Seoul High Court.

As to the Grounds of Appeal:

In order for a shareholder of a corporation to be liable for secondary tax payment as an oligopolistic shareholder, it is required that the shareholder must meet the requirements of Article 39 subparagraph 2 of the Framework Act on National Taxes and Article 20 subparagraph 12 of the Enforcement Decree of the same Act as of the date on which the national tax liability is established and that the shareholder can actually control the operation of the corporation.

According to the decision of the court below in this case, the reputation of the corporation managed by the plaintiff (hereinafter referred to as the plaintiff corporation only) is actually owned by 50/100 of the total amount of outstanding shares as of December 31, 1984, which is the date when the tax liability is established, and the non-party who is the representative director of the plaintiff corporation and the non-party who is mixed with all of the shares of the non-party corporation also owns substantial shares equivalent to 21.25/100 of the total amount of outstanding shares of the non-party company, and both are the substantial shareholders of the non-party company, and the total amount of the shares owned reaches 71.25/100 of the total amount of issued shares. According to the plaintiff's assertion, the plaintiff corporation was decided to commence reorganization proceedings under the Company Reorganization Act, which is prior to the date when

As seen above, when a decision to commence a reorganization procedure under the Company Reorganization Act has been made, the right to manage and dispose of the company's business and assets shall be exclusively attached to the administrator, and the administrator shall not be the representative of the reorganization company, but shall be a kind of public trustee, who is the manager of the reorganization company, its creditor, and the interested party's organization. Thus, the non-party, the representative director of the plaintiff corporation, can not exercise shareholder's rights as a major shareholder from that time, and therefore, the plaintiff corporation shall not meet the requirements for oligopolistic shareholders of the non-party company as seen above. Even though the above legal principles are the same, the court below held that there is no complaint in judging whether the above company reorganization procedure is an oligopolistic shareholder because it does not affect the actual status of the shareholder, which is unlawful.

The issue is reasonable and remanded to the court below for further proceedings consistent with the opinion of all participating Justices. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Yong-ju (Presiding Justice)