The meaning of oligopolistic stockholders under subparagraph 2 of Article 39 of the Framework Act on National Taxes

Article 39 Subparag. 2 of the Framework Act on National Taxes provides that if the total amount of shares issued by the relevant corporation is more than 51/100 by taking account of the number of shares issued by any specific shareholder, relative, and all of the shareholders in a special relationship, even if any of the shareholders does not have any relative or special relationship, all of the shareholders shall be deemed an oligopolistic shareholder

Article 39 of the Framework Act on National Taxes and Article 20 of its Enforcement Decree

Supreme Court Decision 79Nu326 delivered on April 22, 1980

[Judgment of the court below]

The head of Yongsan District Tax Office shall transmit the litigation performers, Kim Dong-sik

Seoul High Court Decision 78Gu88 delivered on November 27, 1979

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

The grounds of appeal by the defendant litigant are examined.

According to the reasoning of the judgment, the court below held that the non-party 2 and the non-party 4 were oligopolistic shareholders of 1976 year (from January 1, 1975 to December 31, 1975) and the non-party 2 were not liable to pay taxes, and that the non-party 4 and the non-party 2 were non-party 4 and the non-party 2 were non-party 1 and the non-party 3 were non-party 4 and the non-party 2 were non-party 4 and the non-party 2 were non-party 1 and the non-party 4 and the non-party 2 were non-party 4 and the non-party 2 were non-party 1 and the non-party 4 and the non-party 2 were non-party 1 and the non-party 4 and the non-party 2 were non-party 1 and the non-party 4 and the non-party 2 were non-party 1 and the non-party 2 were the non-party 7 and the non-party 2.

Therefore, even if the number of stocks owned by the plaintiff and the number of stocks owned by the non-party 1 in the special relationship with the plaintiff, it falls short of 51/100 of the total number of stocks issued by the non-party company, and the plaintiff does not constitute the second taxpayer as an oligopolistic shareholder under the provision of the same Act.

According to Article 39 of the Framework Act on National Taxes, where the property of a corporation is insufficient to cover the national tax, additional dues, and disposition fee for arrears imposed or to be paid by the corporation, any person who falls under any of the following subparagraphs as of the date on which the liability for national tax payment is established shall be an oligopolistic shareholder with respect to such shortage, and subparagraph 2 provides that the total amount of its stocks or investment is not less than 51/100 of the total amount of the issued stocks or investment amount of the corporation concerned and Article 20 of the Enforcement Decree of the same Act provides for the scope of relatives or specially related persons as well as 51/100 of the total amount of the issued stocks of the corporation concerned, the above disposition shall not be deemed an oligopolistic shareholder with the second liability for tax payment, even if there is no relative or special relation between the shareholders and the above 20/100 of the total number of the issued stocks of the corporation, and thus, the above disposition shall not be deemed an oligopolistic shareholder with the second liability for tax payment under the premise that the above disposition is invalid under the premise that the above 10/1/1/3 of the above oligopolistic shareholder and the above shares.

Therefore, the original judgment is reversed, and the case is remanded to the Seoul High Court, which is the original judgment, and it is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Hong-chul (Presiding Justice)