원고가 제출한 증거만으로는 제2차 납세의무자 지정ㆍ납부통지가 부적법하다고 인정할 수 없음[국승]
2014west 2709 ( October 16, 2014)
The evidence submitted by the Plaintiff alone does not recognize that the notice of designation and payment of the secondary taxpayer cannot be deemed unlawful.
The evidence submitted by the plaintiff alone is insufficient to recognize that the plaintiff was not in a position to substantially participate in the operation of the non-party corporation, notwithstanding the entries in the certified transcript of corporate register, and there is no other evidence to acknowledge it.
Article 39 (Secondary Tax Liability of Investors)
2014Guhap18053 Revocation of designation, disposition, etc., of the person liable for secondary tax payment
CHAPTER A
○ Head of tax office
May 14, 2015
June 4, 2015
1. The plaintiff's claim is dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
Cheong-gu Office
On March 4, 2014, the Defendant: (a) designated the Plaintiff as the secondary taxpayer by law firm BB on March 4, 2014; and (b) revoked the notice of payment of each value-added tax and earned income tax stated in
1. Details of the disposition;
A. From August 25, 2004 to May 10, 2010, the Plaintiff was registered as a member attorney at each law firm BB (hereinafter “foreign law firm”) from June 24, 201 to September 4, 2012.
B. When the defendant could not appropriate the delinquent amount of the non-party corporation as the property of the above corporation, the plaintiff shall be deemed as the general partner of the non-party corporation under the Commercial Act and the sum of the delinquent amount of each value-added tax and the earned income tax stated in the
As to ○○○ Won, the Plaintiff designated the secondary taxpayer pursuant to Article 39 subparag. 1 of the former Framework Act on National Taxes (amended by Act No. 11845, May 28, 2013; hereinafter “former Framework Act on National Taxes”) and issued a notice of payment of the amount of tax to the Plaintiff on March 4, 2014 (hereinafter “instant disposition”).
C. The Plaintiff dissatisfied with the instant disposition and filed an appeal with the Tax Tribunal on May 8, 2014, but was dismissed on July 16, 2014.
[Ground of recognition] Facts without dispute, Gap evidence Nos. 1-3 through 13, Gap evidence Nos. 2 and 3, the purport of the whole pleadings
2. Whether the instant disposition is lawful
A. The plaintiff's assertion
From June 24, 2011, the Plaintiff was registered as a member attorney at the corporate registry of the non-party corporation, but this was not a location at which the Plaintiff was registered as a member attorney at the corporate registry of the non-party corporation only in the form of a member attorney at the non-party corporation so that the non-party corporation can maintain the number of its members under Article 45 (1) of the former Attorney-at-Law Act (amended by Act No. 10627, May 17, 2011; hereinafter referred to as the "former Attorney-at-Law Act"), and in substance, it was not a location at which the Plaintiff could be involved in the operation of the non-party corporation at all times. Accordingly, the Defendant’s disposition at this point is unlawful and revoked.
B. Relevant statutes
Attached Table 2 shall be as listed in the relevant statutes.
C. Determination
1) Relevant legal principles
Article 58 (1) of the Attorney-at-Law Act provides that "Except as provided in this Act, the provisions pertaining to unlimited partnerships in the Commercial Act shall apply mutatis mutandis to law firms." Article 212 (1) of the Commercial Act concerning unlimited partnerships provides that "if it is impossible to fully pay the company's obligations with its assets, each partner shall be jointly and severally liable to pay the company's obligations." Meanwhile, in order to impose secondary tax liability on the general partner of a corporation pursuant to Article 39 (1) of the former Framework Act on National Taxes, it is essential to say that the general partner of a corporation is in a position to substantially participate in the operation of the corporation as of the date the liability to pay delinquent national taxes is established, and only on the ground that the company is registered as a general partner of a corporation in the form of a registry (see Supreme Court Decision 90Nu4235, Sept. 28, 190). In this case, whether a corporation is a general partner of a corporation pursuant to Article 39 (1) of the former Framework Act on National Taxes shall be proved by data such as corporate register, etc.
2) In the instant case:
In light of the above legal principles, it is insufficient to recognize that the Plaintiff was not in a position to substantially participate in the operation of the non-party corporation as a general partner despite the entries entered in the register of incorporation of the Plaintiff (such as a statement prepared by the newCC): rather, there is no other evidence to recognize the facts. Rather, the following circumstances are acknowledged by comprehensively considering the overall purport of the pleadings in the statement No. 2, No. 3, No. 4-1, No. 7, No. 2-1, and No. 3, the Plaintiff’s statement of payment No. 1, No. 2-2, and No. 3, etc., (i) the Plaintiff had the appearance of the attorney-at-law only in the form of the corporate register of the non-party corporation in order to satisfy the number of the attorneys-at-law of the law firm under the former Attorney-at-Law Act, but the above provision of the Attorney-at-Law Act had been amended on May 17, 201 (No. 5 members of the non-party corporation).
Therefore, the plaintiff's assertion is without merit.
3. Conclusion
Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.