定期株主總會 決議案에 대한 臨時株主總會의 變更·取消決議案의 效力과 稅法上 이에 관한 解釋力의 限界

Following a decision made on dividends to stockholders by the regular general stockholders' meeting in accordance with Commercial Act, Article 426, Clause One, the company has made a corporate tax report having entered the dividends into the statement of appropriations of retained earnings (a plan) as a surplus subject to further appropriation. However, sometime later, a provisional stockholders' meeting was called because of worsening company's financial situation, and in this provisional stockholders' meeting, a resolution was newly made in order to cancel the dividends to stockholders which was resolved previously in the regular general stockholders' meeting. In this case, the National Tax Office ruled that: “In case that when the retained earnings have been decided as dividends (dividend income) pursuant to the provisions of Commercial Act, Article 462, Clause One by the resolution of the regular general stockholders' meeting, and sometime later, although the provisional stockholders' meeting has cancelled the dividend income which was decided in the previous regular general stockholders' meeting with unanimous decision, and when the corporation concerned has not paid the dividends within three months from the date of resolution for appropriation of the surplus pursuant to Income Tax Act, Article 132, Clause One, the dividends then shall be subject to withhold tax at source in accordance with the Act on Real Name Financial Transactions and Guarantee of Secrecy, Addenda, Article 12 (Act No. 5493 as of December 31, 1997), having considered that this dividend income shall be paid on the last day of the third month.” However, this authoritative interpretation adopted by the National Tax Office may arouse further disputes. Specifically, it is not clear if they are interpreting the regular general stockholders' meeting and the provisional stockholders' meeting basically differently in the respect of resolving agenda pursuant to Commercial Act. And, in line with this, it is also not clear that on what basis the National Tax Office denies the effects of resolution, as expressed in the above authoritative interpretation they adopted, although there is a resolution in the provisional stockholders' meeting that will reverse the matter that already decided in the regular general meeting. Therefore, it is pointed out that the above authoritative interpretation adopted by the National Tax Office will not only bring about misunderstanding in interpreting the pertinent provisions of Commercial Act, but also that it will arouse problems in view of legislative interpretation of tax law by breaching the principle of real taxation. In this paper, the researcher should like to conduct the study in two directions. First of all, among the aforementioned two concerns, in order to dissipate the possibility of misunderstanding in view of the provisions prescribed in Commercial Act, as well as in the respect of legislative interpretation thereof, which falls into the former case, beginning with a collective study on the stockholders' meeting, the researcher should like to identify clearly what the institutional differences between the regular general stockholders' meeting and the provisional stockholders' meeting there are, and also what the effects of such resolutions are when the provisional stockholders' meeting has resolved in order to change or revoke a resolution made by the regular general stockholders' meeting with close reviews concentrating on the relevant topics. Next, based on the results therefrom, with regard to the second issue as in the aforementioned subjects concerned with the authoritative interpretation adopted by the National Tax Office, the researcher will investigate basically whether this interpretation will violate the principle of real taxation from the viewpoint of tax law or not, and if the case can be interpreted differently, the researcher is to present a right direction for interpretation thereof in order to correct wrongs in view of the positive tax laws (authoritative interpretation adopted by the National Tax Office) by exerting efforts to find solutions through interdisciplinary researches.