[제2차납세의무자지정처분취소][공1980.4.1.(629),12630]
Cases to be considered as business transfer
In the case where the assets of the non-party company Gap and Eul are transferred to two companies, first, the details of the transferred assets include the land, buildings and the assets necessary for the business, and the total appraised value of the assets exceeds the total amount of the capital of the non-party company, second, it can be viewed as a single economic unit in view of the mutual combination relationship between the non-party company Gap and Eul, and third, in the case where the non-party company's exclusive sales right of the non-party company Gap, which was owned by the non-party company Gap, was transferred to the non-party company Gap, at least to the non-party company Gap.
Article 41 of the Framework Act on National Taxes
National Highway Chemical Industry Co., Ltd. and one other, Counsel for the defendant-appellant
Sejong District Court Decision 201Hun-Ga40 delivered on July 1, 201
Seoul High Court Decision 78Gu501 delivered on May 15, 1979
The judgment below is reversed, and the case is remanded to Seoul High Court.
The defendant's attorney's grounds of appeal are examined.
According to the judgment of the court below, the non-party 1's closedown date of the non-party 1's business is after December 31, 1976, and the transfer of this case shares was made on December 30, 1976 before the expiration date of the national tax liability and the payment period, and the plaintiff et al. judged that the non-party 1 et al. is not the secondary taxpayer under Articles 39 and 40 of the Framework Act on National Taxes. Thus, the court below's decision is just and there is no violation of the rules of evidence, mistake of facts, or misapprehension of legal principles, such
According to the judgment of the court below, the court below recognized that the above non-party company acquired 78,00 shares of 78,00 shares transferred from the plaintiff National Highway Chemical Industry Co., Ltd. by the method of reducing corporate capital and held that the above acquisition of shares cannot be deemed null and void because it falls under Article 341 subparagraph 1 of the Commercial Act. Thus, the court below's decision is just and it is not erroneous in the misapprehension of the rules of evidence, misunderstanding of facts, or misunderstanding of legal principles, etc., as long as the above non-party company obtained self-stocks from the plaintiff National Highway Chemical Industry Co., Ltd. for the purpose of retiring its shares, since the non-party company received the above non-party company's own shares for the purpose of retiring its shares, it should take the procedure of invalidation under Article 342 of the Commercial Act,
In addition, the judgment of the court below states that the acquisition of the above non-party company's own shares does not fall under the category of Article 341 (1) of the Commercial Act, even though the acquisition of the above non-party company's own shares does not fall under the category of Article 341 (1) of the Commercial Act, it shall exceptionally be allowed notwithstanding the provisions of Article 341 of the Commercial Act, since it is a assumptive judgment, it does not affect the result of the judgment of the court below regardless of whether it is legitimate in the content of the judgment,
According to the judgment of the court below, the court below held that the above non-party company's transfer of real estate stocks between the above non-party company and the plaintiff national highways chemical industry company agreed to transfer real estate stocks to repay part of the credit payment debt owed to the plaintiff company and the non-party company's transfer of mutual shares accordingly, and that the above non-party company's transfer of business bonds, securities vehicles, telephone subscription rights, rent deposit, etc. between the above non-party company and the plaintiff counterpart company was only acknowledged to have agreed to transfer the business bonds, securities vehicles, telephone subscription rights, etc. to the plaintiff company to pay part of the credit payment debt owed to the plaintiff company, and there is no other evidence to prove that there was transfer of business, and the above facts alone cannot be viewed
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Justices Kang Jae-hee (Presiding Justice)