[법인세등부과처분취소][공1990.12.15.(886),2454]
Before the merger with another corporation and the registration of the merger has been completed, the legality of the disposition of imposition, such as corporate tax, which was already designated as the secondary taxpayer by the retired member (negative)
The secondary taxpayer of a corporation shall be a general partner of the corporation as of the date when the tax liability is established, and the date when the tax liability for corporate tax and value-added tax is established is when the taxable period expires. If the corporation is extinguished by a merger during the business year which is the taxable period for corporate tax, the date when the merger registration is completed shall be deemed as the business year; and the expiration date of the taxable period for the corporate value-added tax of the corporation extinguished by the merger shall be deemed as the date when the merger registration is completed. Therefore, if the plaintiffs, who are partners of the Gap unlimited partnership company, retired Gap company before the merger registration was completed by the merger corporation Eul, then the taxation disposition of this case is unlawful.
Articles 21 and 39 of the Framework Act on National Taxes, Article 6 (2) of the Corporate Tax Act, Article 3 (3) of the Value-Added Tax Act, Article 10 (2) of the Enforcement Decree of the same Act
Republic of Korea, Japan and one other
The director of the tax office
Seoul High Court Decision 86Gu164 delivered on November 17, 1989
The appeal is dismissed.
The costs of appeal are assessed against the defendant.
The grounds of appeal by the defendant litigant are examined.
According to Article 21(1)1 and 7 of the Framework Act on National Taxes, Article 39 subparag. 1 of the Corporate Tax Act, Articles 5 and 6(2) of the Corporate Tax Act, Article 3(1) and (3) of the Value-Added Tax Act, and Article 10(2) of the Enforcement Decree of the Value-Added Tax Act, a secondary tax obligor of a corporation shall be a general partner of a corporation as of the date the liability for tax payment is established, and the date the liability for corporate tax and value-added tax is established is when the taxable period expires. In principle, the taxable period of corporate tax shall be deemed as a business year until the date the registration of the merger is made, if the corporation is extinguished by a merger during the fiscal period or the business year, and the taxable period of value-added tax shall be one year and two years for the value-added tax, but if the business is closed
According to the records, there is no evidence to deem that the non-party Nam-gu, the partnership company discontinued its business by the transfer of the real estate in this case, but since the merger was registered on the same day on December 2, 1983, the date when the liability to pay the corporate tax and the value-added tax was established is the same day. However, since it is recognized that the above merger company was withdrawn on August 17, 1983, the plaintiffs were found to have been liable to pay the corporate tax and the value-added tax. Thus, the court below held that each disposition of this case was unlawful by designating the plaintiffs who are not the members of the above merged company as the second taxpayer as of the date when the above liability to pay taxes was established as of August 17, 1983 as the above purport is correct, and there is no violation of the rules of evidence
Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Lee Jong-soo (Presiding Justice) Lee Chang-soo Kim Jong-won