The method of determining whether a person who owns the largest number of stocks among the shareholders of Article 39(1)2(a) of the former Framework Act on National Taxes falls under "the person who owns the largest number of stocks";

Article 39(1)2 of the former Framework Act on National Taxes (amended by Act No. 5579 of Dec. 28, 1998) provides that a person (a) who holds the largest number of stocks or has made the largest investment in stocks among oligopolistic shareholders (a) and a person who actually controls the management of a corporation (b) shall be liable for secondary tax liability. Whether a person falls under a "person who owns the largest number of stocks" as referred to in subparagraph (a) above shall be determined according to the formal criteria of holding the largest number of stocks among oligopolistic shareholders and whether a group holding the largest number of stocks of the relevant corporation, which is the requirements of oligopolistic shareholders, exercises a substantial right over stocks of at least 51/100 of the total issued stocks of the relevant corporation.

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

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Lee Jae-soo et al., Counsel for plaintiff-appellant)

Plaintiff (Attorney Kim Young-sik, Counsel for the plaintiff-appellant)

Head of the tax office;

Seoul High Court Decision 2000Nu10399 delivered on June 5, 2001

The judgment below is reversed and the case is remanded to Seoul High Court.

We examine the grounds of appeal.

1. According to the reasoning of the judgment below, the court below acknowledged the facts as stated in its holding, and held 28% of the total issued and outstanding shares of Korea-U.S. Corporation (hereinafter referred to as "Seoul-U.S. Corporation"). However, the court below determined that it did not constitute an oligopolistic shareholder under Article 25 of the former Framework Act on National Taxes (amended by Act No. 25198, Dec. 29, 1997; 25% of the total issued and outstanding shares of Korea-U.S. Corporation (hereinafter referred to as "Seoul-U.S.") after receiving a donation of 50,000 shares of Korea-U.S. Development from Korea-U.K., the date when the corporate tax liability of this case was established, and 53% of the shares of Korea-U.S. Development (the total issued and outstanding shares equivalent to 25% of the total issued and outstanding shares) was an oligopolistic shareholder. At that time, the Gyeongnam-U.S. had already been transferred from the representative director to the Korea-U.S.

2. However, we cannot accept the judgment of the court below.

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). Whether a person falls under "a person who owns the largest number of stocks" as provided for in Article 39(1)2 of the former Framework Act on National Taxes shall be determined based on whether a group of stocks owned by the majority of the relevant corporation, which is a requirement for oligopolistic shareholders, actually exercises rights to the stocks of 51/10 or more of the total issued stocks (see Supreme Court Decision 9Du9346 delivered on January 14, 200).

However, the court below appears to the purport that the period from the date of establishment of the corporate tax liability to December 31, 1997, which became an oligopolistic shareholder of 53% of the grounds for determining that Gyeongnam-si did not correspond to this, the period from the date of establishment of the corporate tax liability to December 31, 1997, which was the date of establishment of the corporate tax liability. The exercise of the rights to 51% or more of the shares as referred to in subparagraph (a) above does not necessarily require that the actual exercise of the shareholder's rights to the shares held as of the date of establishment of the corporate tax liability, but it should be deemed that the status of exercising the shareholder's rights to the shares held as of the date of establishment of the corporate tax liability is sufficient. Next, the fact that Gyeongnam-si's management right was transferred from the representative director to the non-standing committee is merely a transfer of the internal management rights to the Gyeongnam-si's representative director, and it cannot be viewed that the exercise of control rights cannot be affected by normal corporate development.

Therefore, the court below erred by finding that the Gyeong-nam did not bear the secondary tax liability solely for the reasons stated in its holding. If the Gyeong-nam shares were to be donated to the Gyeong-nam's shares, as recognized by the court below, lawful and effective, and if the 53% of the total amount of issued and outstanding shares of Korea-China Development as of the date when the corporate tax liability of this case is established, the 53% of the total amount of issued and outstanding shares of

Therefore, the judgment of the court below is erroneous in the misapprehension of legal principles as to oligopolistic shareholders with secondary tax liability, which affected the conclusion of the judgment, and the ground of appeal pointing this out is justified.

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Jae- Jae (Presiding Justice)