Article 26 (Extinguishment of Liability to Pay Taxes)

2. The plaintiff's remaining claims are dismissed.

3. The costs of lawsuit shall be borne by the Plaintiff.

2. The Defendant’s disposition of imposition of KRW 32,292,03 of corporate tax against the Plaintiff on May 28, 2008 shall be revoked.

(a) The process of imposing corporate tax for the business year of 2001 and the process of proceeding administrative litigation on the Defendant’s house in △△△△ (hereinafter referred to as “house in △△”);

(1) 주식회사 두성은 대구 달성군 옥포면 ★★리 1149 외 12필지 11,203㎡ 지상에 ○○아파트 제2, 3차분 765세대를 시공하던 중 1995. 3. 14. 부도로 인하여 위 공사를 중단하였고, 그 후 위 공사는 ●●주택, 주식회사 ◎◎으로 승계되었으며, ☆☆주택은 2000. 5. 30. 대구광역시로부터 위 ○○아파트를 승계 시공하는 것을 조건으로 대구 달서구 ◇◇동에 있는 장기지구공영개발택지 4블록의 토지 12,292평을 우선 분양받을 수 있는 권리(이하 '우선분양권'이라고 한다)를 취득하여 2002. 1.경위 ○○아파트 공사를 완공하였다.

(2) ☆☆주택은 위 ○○아파트 공사를 완공하기 전인 2001. 6. 16. ◆◆건설 주식회사 에게 위와 같이 우선분양권을 65억 원에 양도하기로 하고, ◆◆건설 주식회사로부터 계 약 당일부터 2002. 6. 1.까지 사이에 현금 또는 약속어음으로 위 양도대금 전부를 지급 받았으며, 대구광역시 택지대장에 우선분양권에 대한 권리자의 명의를 ◆◆건설 주식회사로 변경하였다.

(3) ☆☆주택은 ◆◆건설 주식회사와 사이에 법인세법 등에서 정한 바에 따라 계산서 또는 영수증을 수수하지 아니한 채, 피고에게 2001 사업연도 법인세 과세표준 및 세액 신고시 우선분양권에 대한 거래내역을 세무신고하였다.

(4) On January 16, 2003, the Defendant issued a notice on the payment period of KRW 1,473,875,00 for the business year 201 for the transfer of the right of preferential sale ( KRW 1,408,875,00 for the non-delivery of the special surtax and KRW 1,408,875,00 for the non-payment of the special surtax) as of January 31, 2003, and subsequently corrected the special surtax as of November 28, 2003 by reducing the above amount of KRW 5,095,066 for the purpose of the National Tax Tribunal’s decision (hereinafter referred to as “the imposition of the first corporate tax on the non-payment of the special surtax”) by reducing the amount of KRW 65,00,000 for the non-payment of the special surtax and the remainder of KRW 5,095,066 for the non-payment of the special surtax).

(5) The house in Do-won in Seoul Special Metropolitan City filed an administrative litigation seeking the revocation of the initial corporate tax imposition, and the court of first instance rendered a judgment revoking the imposition of the initial corporate tax on the ground that the imposition of the special surtax was unlawful on April 22, 2005 based on the abolished Act, and that the imposition of the special surtax is unlawful, and the imposition of the invoice non-delivery additional tax is unlawful on the grounds that the tax item is not written and the grounds for calculating the tax amount such as the tax rate is incorrect and illegal.

(6) On May 18, 2005, after the first instance judgment on the imposition of corporate tax was rendered, the Defendant issued a tax notice stating separate grounds for calculating the tax items, tax bases, tax rates, etc. (65,000,000,090,000,0000,000,000,000,000) for corporate tax on May 31, 2005 (hereinafter referred to as a "new imposition of corporate tax"), and issued a tax notice on May 20, 2005, on May 20, 2005, on the grounds that the initial tax notice on the imposition of corporate tax stated inaccurate grounds for calculating the tax amount.

(7) On October 21, 2005, the second instance court (Tgu High Court 2005Nu860) rendered a judgment to revise the first instance court's decision to dismiss the claim of the housing of the △△△△ for the first instance on the ground that the Defendant imposed new corporate tax on the housing of the △△△△, and ex officio revocation of the initial imposition of corporate tax. On the ground that the first instance court rendered a decision to revise the first instance court's decision to dismiss the claim of the housing of the △△△△, while the second instance court's decision became final and conclusive.

b)Designation of the Defendant’s second tax obligor and notice of tax payment;

피고는, ☆☆주택의 2001 사업연도 법인세 납세의무 성립일 현재 발행주식 중 당시 대표이사인 원고가 37.5%, 서□□(원고의 부)이 32.5%, 서■■(원고의 동생)가 30%를 보유하고 있어 원고, 서□□, 서■■는 ☆☆주택의 과점주주에 해당한다고 보아, 2008. 5. 28. 원고를 ☆☆주택의 제2차 납세의무자로 지정하여 원고에게 ☆☆주택의 새로운 법인세 부과(계산서미교부가산세 65,000,000원 부분)에 대한 체납세액과 그에 대한 가산금 및 중가산금의 합계 86,112,090원 중 원고의 보유지분인 37.5%에 해당하는 2001년 귀속 법인세 24,375,000원과 가산금 560,680원 및 중가산금 7,356,350원의 합계 32,292,030원을 부과하는 처분(이하 '이 사건 처분'이라고 한다)을 하였다.

(c)Implementation of the pre-trial procedures;

The Plaintiff filed a petition with the Tax Tribunal for a trial seeking the revocation of the instant disposition, but the Tax Tribunal rendered a decision to dismiss the Plaintiff’s petition on February 9, 2009, and the foregoing decision was served on the Plaintiff on February 11, 2009.

[Ground of recognition] Evidence Nos. 1, 2, and 3-1, 2-1, 4-1, 2-1, 2-2, 3-2, 4-1, 2-1, 2-3, 4-2, and 4-2, and the purport of the whole pleadings

2. Whether the revocation part of the designation of the secondary taxpayer among the lawsuit in this case is legitimate

The second tax liability under Article 39 of the Framework Act on National Taxes is abstractly established by the occurrence of a fact that meets the requirements such as the main taxpayer’s default and is notified by the notice of payment. The second tax liability is not yet finalized solely on the designation of the secondary taxpayer, and the designation of the secondary taxpayer cannot be deemed an administrative disposition that is the object of appeal litigation (see, e.g., Supreme Court Decision 95Nu6632, Sept. 15, 1995).

Therefore, the part of revocation of the designation of the secondary tax obligor in the case of this case is considered to be correct.

3. Whether the instant disposition is lawful

A. The parties' assertion

(1) The plaintiff's principal

(A) The instant disposition to which the Plaintiff, an oligopolistic shareholder, designated as the secondary taxpayer and reverted the corporate tax in arrears to the Plaintiff, the primary taxpayer, has the nature of the disposition of imposition. Therefore, the exclusion period of the instant disposition against the Plaintiff is expired at the expiration of five years from the following day after the deadline for filing the corporate tax of the △△△△ Housing. However, the end of the 2001 business year is December 31, 2001, and the deadline for filing the corporate tax was March 31, 2002. Thus, the corporate tax liability for the business year 2001 of the △△△△△△ Housing was expired on March 31, 2007, five years after the exclusion period was expired from April 1, 2002 to May 28, 2008.

(B) Even if the notice of the payment to the secondary taxpayer is of the nature as a collection disposition, the instant disposition is a disposition with the same content as the initial imposition of corporate tax, and its extinctive prescription is expired on February 1, 2008, which was five years from February 1, 2003, the following day of the payment deadline of the initial corporate tax ( January 31, 2003). Therefore, the instant disposition was unlawful since it was conducted on May 28, 2008, for which the extinctive prescription period expired.

(2) Defendant’s principal

(A) The notice of payment to the secondary taxpayer has a nature as a disposition under the collection procedure of the principal tax liability that is substantially determined by the taxation disposition, etc., and thus, the period of extinctive prescription, rather than the exclusion period, is applied to the instant disposition. However, the extinctive prescription of the right to collect new corporate tax on the house of △△△△△ (e.g., May 31, 2005) shall expire on May 31, 2010, when five years have elapsed from June 1, 2005, following the said payment period (e.g., May 31, 2005). Therefore, the instant disposition was lawful since the statute of limitations expired on May 28, 2008

(B) Even if the notice of the payment to the secondary taxpayer is of the nature of the disposition imposing a tax, the establishment time of the secondary tax liability shall be at least after the expiration of the payment time limit for the main tax liability. Thus, the exclusion period of the instant disposition shall expire on May 31, 2010 after the lapse of five years from June 1, 2005, which is the day following the payment time limit for new corporate tax assessment on the house of △△△ ( May 31, 2005) which is the main tax liability. Therefore, the instant disposition was lawful since it was made on May 28, 2008, which was before the exclusion period expires.

(b) relevant statutes;

It is as shown in the attached Form.

C. Determination

Article 12-3 of the Enforcement Decree of the Framework Act on National Taxes does not provide for "the date on which the principal liability for tax payment can be imposed" as to the secondary liability for tax payment. However, the date on which national tax can be imposed is generally the date on which the secondary liability for tax payment is established, considering that the payment notice to the secondary liability for tax payment is, in principle, the date on which the secondary liability for tax payment is established, separate from the main liability for tax payment, and the exclusion period of imposition runs from the date on which the secondary liability for tax payment can be imposed, barring any special circumstance (see, e.g., Supreme Court Decision 2008Du1756, Dec. 13, 2008).

In the case of this case, ① the instant disposition was issued to the Plaintiff by designating the Plaintiff as the secondary person liable for tax payment of the housing in △△△△△, the primary taxpayer of the △△△△△, and the amount of delinquent corporate tax corresponding to the Plaintiff’s shares in ownership among the amount of delinquent corporate tax on the new assessment of the housing in △△△△△, which is the primary taxpayer for tax payment. ② The initial corporate tax assessment (additional tax on January 16, 2003) on the housing in △△△△△, was issued on March 31, 2003; and the payment deadline was revoked ex officio on May 20, 205 and terminated on May 20, 2005 due to the violation of the procedure in the form of notice of payment between the housing in △△△△△ and the Defendant; ③ the period of imposition of corporate tax on the housing in △△△△△, which is the basis for establishing the secondary tax liability on December 31, 2001 and the period of imposition of corporate tax is within 25.5.

Therefore, the disposition of this case rendered by the defendant against the plaintiff on May 28, 2008 is legitimate as a disposition of imposition within the above exclusion period, and the plaintiff's assertion against this is without merit.

4. Conclusion

Therefore, the revocation part of the second taxpayer designation disposition among the lawsuit of this case is illegal, and thus, it is dismissed. The remaining claims of the plaintiff are dismissed as it is without merit. It is so decided as per Disposition.