간주취득세의 과세요건인 ‘과점주주’에 대한 회사법적 이해 ― 대법원 2016. 3. 10. 선고 2011두26046 판결을 중심으로 ―

The Korea Supreme Court has maintained ‘Economic Substance’ view, meaning tax law does not need to be restrained by corporate law when it comes to construing the meaning of oligopolistic shareholder in Local Tax Law Clause 5 of Article 7. After it has expressed this view for the first time in tax payer’s intentional deemed acquisition tax evading case(2008Du8499 en banc decision), this economical substance view became solid in this case(2011Du26046), and still being quoted in succeeding cases. However, as the concept of oligopolistic shareholder in Local Tax Law is a ‘borrowed concept’ from corporation law, the meaning of oligopolistic shareholder in Local Tax must be interpreted in the perspective of corporate law. This attitude also corresponds to The Korea Supreme Court’s traditional approach, which construes the concept of shareholder in deemed acquisition tax, according to corporate law. Recently, the Korea Supreme Court has ruled, ‘Nominal Shareholder is the only effective shareholder regards to corporation relationship.’ in ‘Who is shareholder’ problem(2015Da248342 en banc decision). But still, ① it allows exceptional situation under rigorous condition and, ② it is also clarifying the difference between ‘exercising shareholder’s rights’ and ‘to whom the shareholder’s rights belong to’, and treating these respectively. So when it comes to analyzing the meaning of oligopolistic shareholder in Local Tax Law, these Supreme Court stance about shareholders must be considered together. So this dissertation asserts that in this case(2011Du26046), according to corporate law theory, ① The court should make a judgement about whether the corporate law theory about ‘de facto one shareholder company’ can be applied to Local Tax Law Clause 5 of Article 7. ② The court needs to clearly verify between ‘nominal trust contract’and just simple ‘name borrowing contract’. ③ In principal, as only the nominal shareholder is considered as proper shareholder according to 2015Da248342 en banc decision, whether one is nominal shareholder or not should be a criterion in deciding oligopolistic shareholder in Local Tax Law, in both ‘nominal trust’ and ‘name borrowing’ cases. But, if the case is just about name borrowing contract, there is a possibility that equitable shareholder not a nominal shareholder, to whom the rights of shareholder belong to, can be treated as shareholder in Local Tax Law.