[부가가치세부과처분취소][집31(1)특,178;공1983.5.1.(703),668]
Whether a person who takes over only a construction business license has secondary tax liability (negative)
Article 41 of the Framework Act on National Taxes and Article 22 of the Enforcement Decree of the same Act does not include persons who comprehensively succeed to all the rights and obligations concerning the secondary tax liability business under Article 22 of the same Act, and thus, in cases where only a license (construction business license) which legally is qualified to legally operate a construction business is taken over, they do not constitute "transfer or acquisition of business" under the same Act, and thus, they do not constitute secondary taxpayers.
Article 41 of the Framework Act on National Taxes, Article 22 of Enforcement Decree of the Framework Act on National Taxes
Jinwon General Facility Co., Ltd., Counsel for the plaintiff-appellant
Seoul Head of the tax office
Seoul High Court Decision 81Gu466 delivered on May 12, 1982
The appeal is dismissed.
The costs of appeal shall be borne by the defendant.
The grounds of appeal are examined.
The court below, based on macroficial evidence, acknowledged the fact that the transfer and acquisition of a non-party company's construction business by preparing a contract for transfer and acquisition of the non-party company's construction business as if it were acquired by transfer and acquisition of the non-party company's construction business in the form of its judgment, and recognized that the transfer and acquisition of the non-party company's construction business's construction business's construction business's construction business's all rights and obligations are not a comprehensive succession, but a license which is a qualification for legitimate operation of the business (construction business) is not a "transfer and acquisition of the non-party company's business's business" under Article 41 of the above Act, and cancelled the notice of tax payment according to the designation of the non-party company's second taxpayer. According to the records, the above recognition of the court below is correct, and the person who comprehensively succeeds to all rights and obligations with respect to the business's second tax liability under Article 41 of the Framework Act on National Taxes and Article 22 of the Enforcement Decree of the above Act refers to cases where a contract for transfer and acquisition by transfer is made by transfer, but does not include individual rights.
Therefore, the appeal is dismissed, and the costs of the appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.
Justices Kang Jong-young (Presiding Justice)