Whether a person registered as a shareholder in the register of shareholders falls under an oligopolistic shareholder who bears the secondary tax liability (negative)

In order to have a shareholder of a corporation bear the secondary tax liability pursuant to subparagraph 2 of Article 39 of the Framework Act on National Taxes, it requires that the shareholder of a corporation be in a position to substantially control the operation of the corporation as an oligopolistic shareholder. On the sole basis of the reasons registered as a shareholder in the register of shareholders of the corporation, the said shareholder cannot be deemed an oligopolistic shareholder

Article 39 subparagraph 2 of the Framework Act on National Taxes

Supreme Court Decision 80Nu403 Delivered on January 13, 1981, 80Nu272 Delivered on September 27, 1983

Plaintiff 1 and six plaintiffs' attorneys Park Young-young, Counsel for the plaintiff-appellant

Head of Ansan Tax Office

Seoul High Court Decision 84Gu99 delivered on December 27, 1984

The appeal is dismissed.

The costs of appeal shall be borne by the defendant.

The grounds of appeal by the defendant litigant are examined.

Under Article 39 subparagraph 2 of the Framework Act on National Taxes, in order to impose secondary tax liability on the shareholders of a corporation under Article 39 (2) of the same Act, it is required that the non-party is an oligopolistic shareholder who is in a position to substantially control the operation of the corporation, and merely because the reasons registered as shareholders in the register of shareholders of the corporation are listed in the register of shareholders, the non-party cannot be charged with tax liability as an oligopolistic shareholder immediately (see, e.g., Supreme Court Decision 80Nu403, Jan. 13, 1981; Supreme Court Decision 83Nu272, Sept. 27, 1983). According to the reasoning of the judgment of the court below, the court below held that the non-party established the non-party state transportation company under the evidence and responsibility of the non-party to meet the requirements under the Commercial Act at the time of its establishment, and that the non-party is not a shareholder of the above non-party company, the plaintiffs was not a shareholder of the above non-party company.

The issue is groundless.

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

Justices Kim Jong-sik (Presiding Justice)