In a case where a disposition to impose a tax on a principal taxpayer becomes null and void due to lawful service, and the designation of the secondary tax obligor and the disposition to impose a tax are served on the principal taxpayer pursuant to the judgment that the designation of the secondary tax obligor and the disposition to impose a tax are null and void, whether the designation of the secondary tax obligor and the disposition to impose a tax again constitutes a disposition to implement the judgment

The following facts are acknowledged in full view of the facts without dispute, Gap evidence 1, Eul evidence 1, Eul evidence 1-2, Eul evidence 3, Eul evidence 8, and the whole purport of the pleading.

가. 원고는 피고를 상대로 피고가 1986.3.3. 원고에 대하여 소외 ㅇㅇ원양실업주식회사(이하 소외회사 라고만 한다)의 제2차 납세의무자로 지정하여 한 별지 제1목록 기재의 부가가치세 및 법인세의 부과처분이 무효임을 확인하여 달라는 소송을 제기하여 1989.12.20. 서울고등법원에서 원고 승소판결을 받았고, 동 판결에 대하여 피고가 불복 상고하였으나 1990.9.11. 대법원에서 상고기각판결이 선고됨에 따라 원고의 승소로 확정된 바 있다.

B. In the above final and conclusive judgment, the Defendant cannot be deemed to have lawfully served a tax notice on the non-party company, which is the principal taxpayer of the above tax, and thus, the second taxpayer designation and its taxation disposition against the Plaintiff were made without a final and conclusive tax liability for the principal taxpayer, and thus, it was determined that the defect in the disposition procedure is clearly and seriously null and void.

다. 피고는 다시 1991.5.14. 소외 회사가 1985.5. 부도를 내고 폐업하여 사무소가 행방불명이므로 그 대표이사인 김ㅇㅇ에게 별지 제2목록 기재(별지 제1목록 기재의 세금 외에 별지 제2목록 기재 순번 3,5번의 세금 2건이 추가되었다)의 각 세금고지서를 등기우편으로 발송하고, 그 등기우편이 반송되지 아니하였다 하여 적법하게 송달된 것으로 보고, 1991.7.2. 국세기본법 제39조 제2호 및 같은법시행령 제20조 제1호에 의하여 원고가 소외 회사의 과점주주라하여 원고를 소외 회사의 제2차 납세의무자로 지정 별지 제2목록 기재의 각 세금을 부과처분(이하 위 재차의 제2차 납세의무자 지정 및 그 각 세금부과처분을 이 사건 처분 이라고 한다)하였다.

2. Whether the instant disposition is valid

A. The Parties’ assertion

Article 26-2 (1) 1 of the Framework Act on National Taxes provides that each tax imposition disposition on the non-party company, the main taxpayer of which is the non-party company, in accordance with the main sentence of Article 26-2 (1) 1 of the Framework Act on National Taxes, shall be imposed after the lapse of five years from the date on which the period of exclusion expires, and that defect is apparent, obvious, and invalid. Thus, the Plaintiff asserts that the designation of the secondary taxpayer and the instant disposition, which is a tax disposition, are substantially complementary to the Plaintiff, are invalid

On the other hand, the defendant asserts that even after the expiration of the exclusion period in the case where an administrative litigation is filed pursuant to Article 26-2 (2) of the Framework Act on National Taxes, a decision of correction or other necessary decision can be made according to the relevant decision even before one year has passed from the day when the judgment became final and conclusive, and that in the case of this case, the designation of the second taxpayer and the disposition of imposition thereof can be made lawfully by allowing the plaintiff to newly deliver a tax notice to the non-party company, the principal taxpayer, according to the contents of the final and conclusive judgment before September 11, 191, which is the day when the judgment became final and conclusive, and thus, the disposition of this case is legitimate.

B. Determination

(1) Grounds for invalidation

In case of corporate tax (including the same defense tax) for which the deadline for filing tax base of each tax specified in the separate sheet No. 2 attached to the non-party company, the principal taxpayer of this case, is the filing date of each tax base listed in the separate sheet No. 2 attached to the separate sheet No. 2, 2, 1985, and 60 days from September 30, 1983 pursuant to Article 26 (3) and (1) of the Corporate Tax Act before the amendment as Act No. 3794 of Dec. 23, 1985, which was amended as Act No. 3794 of Sep. 29, 1983, and 1, 3, the separate sheet No. 2, 1983, No. 1, 1985, which was 85 days from September 30, 1985 to December 14, 196, each of which was 196, No. 1965 of the separate sheet No. 2, 2, 195,565, respectively, respectively (attached No. 2, 165, 1965, Dec. 165, 16, 1965, , 1965, 1965, respectively.

Therefore, each tax imposition disposition against the non-party company on May 14, 1991, which was later made after the expiration of the exclusion period, shall be null and void, as it is a disposition after the expiration of the exclusion period, and its defect is obvious and serious. Accordingly, the designation of the second taxpayer against the plaintiff who has the supplementary nature and the disposition of this case, which is the disposition, shall not be null and void even if the defect is obvious and serious.

(2) Determination on the Defendant’s assertion related to Article 26-2(2) of the Framework Act on National Taxes

First of all, since the taxes of Nos. 3 and 5 among the taxes listed in the attached Table 2 were added to those not from the taxes listed in the attached Table 1, it shall be deemed that they are irrelevant to the implementation of the above final judgment.

Therefore, it is reasonable to view each tax of the remaining items among the taxes listed in the attached Table 2.

Article 26-2 (2) of the Framework Act on National Taxes provides that even if the limitation period of the right to impose tax has expired as a result of an administrative litigation, etc. disputing a taxation disposition, the purpose of the provision is to properly adjust the tax liability of taxpayers by allowing them to make necessary dispositions, such as a decision of correction, for the taxpayer dissatisfied with the decision, within one year from the date when the decision became final and conclusive.

In the instant case, the purport of the final and conclusive judgment is that the designation of the secondary taxpayer and the imposition disposition of each tax on the Plaintiff is null and void by rendering lawful service as a result of the supplement of the principal tax liability. Therefore, the Defendant’s new duty payment notice to the principal taxpayer and subsequent disposition of imposing each tax on the Plaintiff when designating the secondary taxpayer is based on the same purport is the provision under the Framework Act on National Taxes. Therefore, the content of the relevant judgment is not that implemented in the sense of adjusting the Plaintiff’s tax liability for the Plaintiff.

In addition, the above final judgment is a judgment on whether the designation of the secondary taxpayer and the disposition of imposition thereof are invalid between the plaintiff and the defendant, and since the judgment was not made between the non-party company and the main taxpayer, the new service of the notice of tax payment to the non-party company cannot be deemed as a measure to implement the above final judgment that is not directly related to the non-party company's

Therefore, the defendant's disposition of this case cannot be viewed as a case where a decision of correction or other necessary disposition has been made according to the decision within one year from the day when the decision is made under Article 26-2 (2) of the Framework Act on National Taxes, and the defendant's argument based on the opposing opinion

3. Conclusion

Therefore, since the disposition against the plaintiff of this case against the plaintiff of this case is not invalid, the plaintiff's claim seeking confirmation of nullity is justified, and the lawsuit costs are assessed against the defendant who has lost, and it is so decided as per Disposition (attached Form omitted).