Daejeon District Court-2017-Gu Partnership-103787 ( October 21, 2018)

The designation of the person liable for secondary tax payment is not erroneous solely on the ground that he did not participate in the management of the corporation.

(1) If one shareholder and its specially related person are oligopolistic shareholders of a delinquent corporation, they are not required to actually exercise the management of shares, but are sufficient if they are in a position to exercise shareholders' rights with respect to shares held as of the date of establishment of tax liability.

Article 39 of the Framework Act on National Taxes

2018Nu11652, revocation of disposition of imposition, including corporate tax

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○ Head of tax office

Daejeon District Court Decision 2017Guhap103787 Decided June 21, 2018

October 24, 2018

November 21, 2018

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The judgment of the first instance shall be revoked. Each disposition taken by the defendant against the plaintiff on March 28, 2016 shall be revoked.

1. Details of the disposition;

The court's explanation on this part is identical to the corresponding part of the reasoning of the judgment of the court of first instance (from 4th to 3th 2th of the judgment of the court of first instance). Thus, this part of the reasoning is cited in accordance with Article 8 (2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

2. The assertion and judgment

A. The plaintiff's assertion

In order for a shareholder of a corporation to assume the secondary tax liability as an oligopolistic shareholder, he/she shall exercise the rights to shares or de facto control the management of the corporation. However, the Plaintiff was unable to exercise the rights to shares or participate in the management of the instant company, and thus, the Plaintiff is in violation of the Constitution unless such interpretation is made.

B. Relevant statutes

Attached Table 2 shall be as listed in the relevant statutes.

C. Determination

1) 국세기본법 제39조의 입법 취지 및 개정 경과 등에 비추어 보면, 위 규정에서 말하는 '100분의 50을 초과하는 주식에 관한 권리를 실질적으로 행사'한다는 것은 실질적으로 주주권을 행사한 실적은 없더라도 적어도 납세의무 성립일 당시 소유하고 있는 주식에 관하여 주주권을 행사할 수 있는 지위에는 있어야 한다는 의미로 보는 것이 타당하고(대법원 2012. 12. 26. 선고 2011두9287 판결 등 참조), 이러한 해석이 헌법에 위배된다고 볼 수 없다. 과점주주 중 상대적으로 소액의 주주라고 하더라도 최대주주 등과 공동으로 경영에 관여할 가능성이 있고, 위 규정은 이와 같이 당해 법인의 경영지배에 힘을 보탤 수 있는 지위를 제2차 납세의무 부담의 요건으로 규정하고 있는 것이다. 따라서 설령 과점주주 상호간에 경영권 분쟁이 발생하여 일부 과점주주가 나머지 과점주주의 경영 관여를 배제한다고 하더라도, 이는 당해 주식에 관한 권리를 실질적으로 행사하는 데 대한 법률상 장애사유라기보다는, 그 주식에 관한 실질적인 권리 행사에도 불구하고 경영 관여에 사실상 장애사유가 발생한 것에 불과하다. 이와 같은 사실상 장애는 상법이 정하고 있는 주주의 권리를 행사함으로써 해결할 문제일 뿐이고, 그와 같은 경영권 분쟁 상태가 조세법상 과점주주의 제2차 납세의무를 배제할 수 있는 사유에 해당한다고 볼 수는 없다.

2) Examining the following circumstances that can be recognized by comprehensively taking account of the respective descriptions in the evidence Nos. 4, 6, and 7 and the overall purport of the pleadings, in light of the aforementioned legal principles, the Plaintiff is an oligopolistic shareholder who owns 100% of the shares issued by the instant company with relatives and BB, and the Plaintiff’s shares are also 20.4% of the shares held by the Plaintiff, and the Plaintiff’s exercise of shareholder’s rights was de facto avoided by AA with the right to manage the instant company, and the Plaintiff was not disqualified from exercising shareholder’s rights. Therefore, it is reasonable to deem that the Plaintiff is an oligopolistic shareholder and is liable to secondary tax liability under Article 39 of

A) From January 1, 2012 to December 31, 2015, the Plaintiff was holding 20.4% of the shares of the instant company, and was registered as an internal director of the instant company from June 29, 2010. The instant company was a small-scale company composed of family members, and the Plaintiff received dividends or was paid as an internal director, but the Plaintiff exercised his right on the premise that he was a shareholder and an internal director. In other words, the Plaintiff raised an objection against the place or agenda of holding the board of directors upon receipt of a notice of convening the board of directors from the representative director AA, and the Plaintiff raised an objection against the holding of the board of directors or the general meeting of shareholders without a notice of convening the board of directors. The Plaintiff also expressed the intent that the establishment of the right to collateral security was defective to the principal shareholder and the shareholder status, and the embezzlement of AA’s representative director is doubtful, and the Plaintiff’s act of exercising the right to collateral security was clearly asserted that the Plaintiff and the Plaintiff’s act was a major shareholder or director.

B) The secondary tax liability system for oligopolistic shareholders as stipulated in Article 39 of the Framework Act on National Taxes has the objective of achieving substantial tax equality by oligopolistic shareholders who control the management of a small-scale closed unlisted corporation, which consists of relatives and relatives, etc. as shareholders, to whom they belong to themselves, and to prevent losses from abusing the company’s corporate personality by exceeding the company. However, if the secondary tax liability is exempted due to a sudden reason that there is a dispute over the management rights between oligopolistic shareholders, it may result in the elimination of the secondary tax liability by creating the external dispute over the management rights of oligopolistic shareholders through a consultation among oligopolistic shareholders.

3. Conclusion

Thus, the plaintiff's claim shall be dismissed as it is without merit. The judgment of the court of first instance is just in conclusion, and the plaintiff's appeal is dismissed.