제2차납세의무를 지는 과점주주의 범위에 관한 연구

Abstract

The secondary tax liability of oligopolistic stockholders is against the principle of a stockholder's limited liability-the dominant principle of corporation law-and extends a tax liability to a third party originally irresponsible for the obligation. However, not only does the system of secondary tax liability of oligopolistic stockholders infringe upon the property right of the concerned oligopolistic stockholders but it is also against the principle of equal rights, as the oligopolistic stockholders would be unreasonably discriminated. To shift the original tax liability to a third party, there should be a reasonable cause and even so, the extent should be limited to the minimum. Therefore, the existing Article 39 of the Basic Law for National Taxes should be abolished and instead, like Article 36 of the National Tax Collection Law of Japan, a new article charging only particular beneficiary of oligopolistic stockholders should be established. In other words, a new article should be established so that secondary tax liability is charged only in the following circumstances: (1) a company has in some way illegally attributed whole or part of its income to people with special relationships among the oligopolistic stockholders, or (2) a company has unfairly distributed interests while in transaction with people with a special relationship. In these cases, the people with a special relationship shall have the secondary liability for tax payment with regard to the shortage within the distributed interests. If it is difficult to abolish Article 39 of the Basic Law for National Taxes at the moment, Article 39 (1) (ii) (a) and (c) should be deleted and (b) should be revised so that oligopolistic stockholders have the secondary tax liability only if they have used the corporate body's management as a means of tax avoidance.