The Problems and Improvement Solutions of Oligopolistic Stockholders System in Tax Law
Asian Tax Journal Vol. 11 No. 3 (2010), pp. 123-152
Abstract
The secondary tax liability and acquisition 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. So the extent of oligopolistic stockholders system should be limited to the minimum as possible. I think it is necessary to take complimentary measures for improvement of oligopolistic stockholders system First, KOSDOQ－listed companies should be excluded from oligopolistic stockholders system and the scope of relative who belongs to oligopolistic stockholders should be cut down. Second, Article 39 (1) (ⅱ) (가) and (나) should be integrated and (다) should be abolished. So oligopolistic stockholders who own in excess of 50% of total issued shares and seize management of companies should held responsible for the secondary liability for tax payment. Third, the legal presumption clause of the secondary liability for tax payment needs to be enacted to ensure the property of oligopolistic stockholders. Fourth, the taxation for name lenders should be strengthened by Article 45－2 of the Inheritance and Gift Tax Law. Fifth, To impose the acquisition tax for oligopolistic stockholders, it should be required that the stockholders can exercise a substantial right over the shares in excess of 50% of the total issued shares. Sixth, where the equity rates of stockholders, who has been already an oligopolistic stockholders,increase, the acquisition tax should be imposed upon only the increased part, regardless of whether it happened within five years or not. Finally, it should be provided that where the corporation concerned did not have the articles liable for the acquisition tax at that time the condition for oligopolistic stockholders being satisfied, the acquisition tax may not levied upon the oligopolistic stockholders.
Keywords
- the secondary tax liability and acquisition tax liability of oligopolistic stockholders
- the principle of a stockholder's limited liability
- the legal presumption clause of the secondary liability for tax payment
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