2. The costs of appeal shall be borne by the Plaintiff.

A. 121 persons, including the Plaintiff, etc., agreed to sell part of the commercial building on the 00-1, 000-8 underground and the 14th floor neighborhood living facilities of the 14th floor and business facilities building (hereinafter “the building of this case”), which were newly constructed on both the 00-1, 00-8 and 00-8 above ground, from the 000 ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○, but the construction was suspended after the 00 ○○○○ was in progress on August 20, 192 when their construction was in progress. Accordingly, 121 persons, including the Plaintiff, etc., acquired the sectional ownership of the building of this case in proportion to the payment amount, and decided to refund the sale amount to others, and decided to the 00○○○○○○○○○○ association (hereinafter referred to the instant association”).

B. At the time of the formation of the instant association, the association elected the ○○○○ from the name of the owner of the instant building and the title of the ownership on the said ○○-1 ○○-8 land from ○○○○○ on January 14, 1993. However, the association opened a general meeting on May 1993 to dismiss ○○○○○○, ○○, and the Plaintiff (hereinafter “three persons including the Plaintiff”) from the name of the new representative of the instant association. At that time, the association transferred the name of the owner of the instant building from ○○○○ to 3 persons including the Plaintiff, etc., and completed the procedure of registration of the ownership of ○○○○-1 ○-8 land from ○○○○○-1 on February 17, 1994 to 3 persons including the Plaintiff, etc., and completed the procedure of registration of the ownership transfer to ○○-1 ○○-6, an entire 197 business.

C. At the second half of 197, the first floor, 8-10, 203, 301, 302, and 304 of the building of this case were sold during the first half of 1998, but the value-added tax was not paid (the third party, including the plaintiff, filed a value-added tax base and tax amount return for the first floor of 1,8-10). The defendant, around June 1, 1998, notified three others, including the plaintiff, of the second half-year value-added tax of 1997, 598,989, 820, 1998, 200, 306, 209, 309, 209, 306, 209, 306, 309, 206, 306, 306, 207, 209, 306, 309, 29, 37, etc.).

D. On January 14, 1999, ○○○ filed a lawsuit against the Defendant for the confirmation of invalidity of the imposition of value-added tax (case No. 1-4) with the ○ Administrative Court. On August 13, 1999, the Defendant, etc. pending the lawsuit, revoked each of the initial notification dispositions on the ground that it was erroneous for three persons including the Plaintiff, etc. to simply indicate that he is an individual joint business operator, who is the representative of the ○○○ Cooperative, and notified the value-added tax. On August 16, 1999, ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○.

E. In addition, at the second period of 200, the Defendant prepared a correction resolution of value-added tax (i.e., value-added tax 25,705, 390 won for the second period of 2000 and 38.64,20 won for the first period of 200, and 38.20 won for the first period of 200, as the Plaintiff et al. of the instant building were sold at each auction procedure at the first period of 2001.

F. On the other hand, around August 20, 1999, the Defendant released all of the following grounds: (a) around June 1, 1998, a notice of the value-added tax for the second period of 1997, which caused the seizure of each real estate owned by the Plaintiff; (b) around June 1, 1998, a notice of the value-added tax for the second period of 1997, which was the cause of the seizure; and (c) around November 3, 1999 to February 26, 2003, the Defendant seized the Plaintiff’s national tax refund amounting to KRW 31,174,880 on four occasions from November 3, 199 to February 26, 2003; and (d) appropriated the said amount to the Plaintiff for the delinquent amount

G. The value-added tax for the second quarter of 1997, the value-added tax for the first quarter of 1998, the value-added tax for the second quarter of 2000, and the first quarter of 2001 (hereinafter “each of the instant value-added tax”) were all delinquent, and most of them were disposed of, and remain as the delinquent amount for the second quarter of 1997.20 million won.

H. On December 2, 2004 and December 17, 2004, the Plaintiff issued an application to the Defendant for the issuance of a certificate of tax payment, but is in strike, the Plaintiff rendered a disposition rejecting the issuance of the certificate of tax payment to the Defendant on December 14, 2004 and December 29, 2004 on the ground that each of the value-added tax of the instant case was delinquent and disposed of as above (hereinafter “instant disposition”).

Facts that there is no dispute with recognition basis, A1-5 (including paper numbers), A16, B 1-4-4 (Ga number combination), the purport of the entire pleadings.

2. Whether the disposition is lawful;

A. The plaintiff's assertion

(1) Article 2 (2) of the Value-Added Tax Act provides that the taxpayer of the value-added tax includes not only individuals and corporations but also unincorporated associations, foundations, or other organizations, so the taxpayer of the value-added tax in the case of a non-corporate group shall be deemed to be the taxpayer of the non-corporate group itself. Since the member of the non-corporate group is not the taxpayer of the non-corporate group, it is reasonable to view the legal nature of the association of this case as the non-corporate group in light of the fact that the association of this case was initially subject to the disposition of notice of collection prior to the tax payment period under the premise that the association of this case constitutes the non-corporate group, and therefore, the disposition of this case is unlawful.

(2) Even if the legal nature of the association of this case is a partnership, it is deemed that its partners bear joint and several tax liability, and it is not a joint and several tax liability solely on the ground that it is a joint and several business owner on the business registration certificate. Thus, the disposition of this case on the premise that the plaintiff is a joint and several taxpayer of each value-added tax of this case is unlawful, since the plaintiff was not only a representative of the association and a joint business owner on the business registration certificate of the association of this case without actually participating in the association activities of this case, but also a representative of the association of this case and a joint business owner on the business registration certificate of the association of this case, who was sold in lots on February 17, 197, lost the membership of the association of this case after cancelling the sales contract and being refunded the sales price of this

(3) (1) The Defendant entered a tax payment notice in the manner of notice of tax payment prior to the due date of tax payment under the National Tax Collection Act based on the resolution of re-revision on August 16, 199, as it stated that “○○○○○○○○○○○○○○○○○○○○○○” was the only effect of the instant tax payment notice on the instant association itself, and it is not legitimate to serve the tax payment notice on the Plaintiff et al. who is an entrepreneur of the Republic of Korea. Therefore, even if the Plaintiff may be liable for joint and several tax payment as an entrepreneur of the Republic of Korea by deeming the legal nature of the instant association as the association and

② The notice of tax payment of each value-added tax of this case was issued only to 3 persons including the Plaintiff. As long as all 121 members of this case did not issue such notice to all 121 members of this case, such notice is in violation of the proviso to Article 8(2) of the Framework Act on National Taxes and thus, it cannot be deemed that

(b) Related statutes;

○ Article 25 of the Framework Act on National Taxes / [Joint Tax Liability]

(1) National taxes, additional dues and tax payment disposal fees related to a joint project jointly owned property or the property belonging to the joint project shall be jointly and severally liable to pay the jointly owned property or the joint project.

○ Article 6 of the National Tax Collection Act (Issuance of Certificate of Tax Payment)

The director of the tax office shall, upon receiving an application for issuance of the tax payment certificate from the taxpayer, confirm the fact and issue the relevant certificate immediately.

Article 6 of the Enforcement Decree of the National Tax Collection Act / [Application for Issuance of Tax Payment Certificate]

Any person who intends to have the certificate of tax payment issued under Article 6 of the Act shall apply the tax rates (including submission through the national tax information and communications networks) to the head of the tax office having jurisdiction over the domicile (referring to the domicile of a foreigner who has no address; hereinafter the same shall apply) or location of his domicile in the case of an individual, and to the head of the tax office having jurisdiction over the seat of his head office (referring to the domestic main business place in the case of a foreign corporation; hereinafter the same shall apply) in the case of a corporation, respectively

1. Domicile or temporary domicile, and name of the person who desires to obtain a certification;

2. Place of business and kinds of business of taxpayers;

3. Purposes of use of certificates;

4. Quantity of the certificate;

○ Article 2 of the Value-Added Tax Act / [Taxpayer]

(1) A person who independently supplies goods (referring to the goods prescribed in Article 1; hereinafter the same shall apply) or services (referring to the services prescribed in Article 1; hereinafter the same shall apply) on a business basis, regardless of whether it is on a commercial basis or not (hereinafter referred to as "enterprisers") shall be liable to pay value-added taxes

(2) The taxpayers referred to in paragraph (1) shall include individuals, corporations (including the State, local governments, and provisions of local governments), unincorporated associations, foundations, and other organizations.

○ Article 23 of the former Value-Added Tax Act / [Collection]

(2) Where an entrepreneur fails to make a preliminary return, or where there are errors or omissions in the reported details or other causes prescribed by the Presidential Decree, the head of the competent district tax office having jurisdiction over the workplace may investigate and determine the tax base and tax amount payable or tax amount refundable by applying mutatis mutandis the provisions of

○ Article 8 of the Framework Act on National Taxes / [Service of Documents]

(2) Where it is intended to serve documents on persons jointly liable for tax payment, they shall be served on the holder in the name of a representative, and where there is no representative, they shall be served on the holder who is favorable to the collection of national taxes from among persons jointly liable for tax payment: Provided, That documents concerning notification and demand of tax payment shall

C. Determination

(1) Legal nature of the instant union

㉮ 민법상의 조합과 법인격은 없으나 사단성이 인정되는 비법인사단을 구별함에 있어서는 일반적으로 그 단체성의 강약을 기준으로 판단하여야 하는바, 조합은 2인 이상이 상호간에 금전 기타 재산 또는 노무를 출자하여 공동사업을 경영할 것을 약정하는 계약관계에 의하여 성립하므로(민법 서703조) 어느 정도 단체성에서 오는 제약을 받게 되는 것이지만 구성원의 개인성이 강하게 드러나는 인적 결합체인 데 비하여 비빕인사단은 구성원의 개인성과는 별개로 권리의무의 주체가 될 수 있는 독자적 존재로서의 단체적 조직을 가지는 특성이 있다 하겠는데 민법상 조합의 명칭을 가지고 있는 단체라 하더라도 고유의 목적을 가지고 사단적 성격을 가지는 규약을 만들어 이에 근거하여 의사결정기관 및 집행기관인 대표자를 두는 등의 조직을 갖추고 있고, 기관의 의결이나 업무집행방법이 다수결의 원칙에 의하여 행해지며, 구성원의 가입, 탈퇴 등으로 인하 변경에 관계없이 단체 그 자체에가 존속되고, 그 조직에 의하여 대표의 방법, 총회나 이사회 등의 운영, 자본의 구서, 재산의 관리 기타 단체로서의 주요사항이 확정되어 있는 경우에는 비법인사단으로서의 실체를 가진다고 할 것이다(대법원 1992.7.10. 선고92다2431 판결 참조).

In light of the above legal principles, the fact that the legal nature of the instant association is a non-corporate body or a partnership under the Civil Act, and that the instant association was appointed as the representative including the Plaintiff, etc. is acknowledged as holding a general meeting of association members on several occasions around August 196, 196, and August 31, 197. However, the fact that the instant association held a general meeting of association members on several occasions, such as around December 13, 1996, and on August 31, 197, is acknowledged by the evidence. In other words, it cannot be deemed that the instant association continues to exist without a change in its members or to have its own purpose. The instant building, which can be deemed as the property of the instant association, completed the registration of ownership transfer in the name of three individuals, such as the Plaintiff, etc., and the contract for new construction of the instant building is concluded in the name of three individuals, such as the Plaintiff, etc., rather than by the Plaintiff, etc., under the Value-Added Tax Act.

Therefore, the plaintiff's assertion that the legal nature of the union of this case is a non-corporate body is without merit.

(2) Whether the Plaintiff is a joint business proprietor under Article 25(1) of the Framework Act on National Taxes

Article 25(1) of the Framework Act on National Taxes provides that the joint-use property, joint-use business, or property belonging to the joint-use business or joint-use business shall be jointly and severally liable to pay the national taxes, additional dues, and expenses for disposition on default related to the joint-use business or the property belonging to the joint-use business. The success of the joint-use business has a close interest and the rights and duties related to the joint-use business shall also be jointly and economically attributed to the joint-use business (see, e.g., Constitutional Court Order 2004Hun-Ba70, Jul. 27, 2006 and Supreme Court Decision 9Nu222, Jul. 13, 1999). Meanwhile, a person who is registered as a joint-use business under the name of the joint-use business cannot be deemed a joint-use business entity under Article 25(1) of the Framework Act on National Taxes (see, e.g., Supreme Court Decision 204Nu2282, Dec. 21, 1983).

However, according to the purport of evidence No. 13 and evidence No. 16, the plaintiff was elected as joint representative of the association of this case or as joint representative of the association of this case in the name of the contract owner or building permit, and the plaintiff was confirmed to use the plaintiff's name as representative of the association of this case and the representative of the association of this case as joint owner of the building of this case. The association of this case, which was held on December 13, 1996, recognized the contribution of three persons such as the plaintiff, etc. as joint representative, and was refunded the amount of the sale price to ○○○○○○, etc. as joint owner of the building of this case. Thus, the association of this case held a general meeting on August 31, 1997 to dispose of the amount of the sale price to ○○○, etc. as joint owner of the building of this case and to recognize the ownership transfer price of the building of this case to be jointly owned and sold to the members of the association of this case.

(3) Whether the Plaintiff is disqualified as an association member

Furthermore, as to the Plaintiff’s assertion on the Plaintiff’s loss of membership, each of the evidence Nos. 10-2 and 16 provides that it is insufficient to recognize the Plaintiff’s intention to withdraw from the association of this case as of February 17, 1997, and there is no other evidence to acknowledge the fact. Meanwhile, as seen earlier, it is recognized that the Plaintiff was refunded the sales price of this case from the association of this case after the general assembly of the association of this case after December 13, 1996, but it is difficult to view that the activity of the association of this case was terminated at the time of February 17, 197, and there is no other evidence to support that the association of this case was dissolved and the liquidation work was terminated at the time of the dissolution of the association of this case. Thus, the Plaintiff’s assertion that the Plaintiff was disqualified as a member of the association of this case on February 17, 1997 is without merit.

(4) As to the assertion on the defect in the duty payment notice

The notice of tax payment refers to the procedure to determine tax liability by specifically determining the contents of tax liability already established abstractly, namely, tax base and tax amount, and notifying the taxpayer of the determination.

(b) As acknowledged earlier, the Plaintiff’s defect in the duty payment notice, premised on the implementation of the procedures, did not go through the procedures to notify the Plaintiff of the value-added tax amounting to KRW 25,705,390 in 200, and KRW 38,64,520 in 201. As such, the Plaintiff’s defect in the duty payment notice, which is premised on the implementation of such procedures, is without merit.

With respect to the assertion of defects in the notice of tax payment as to the amount of value-added tax of KRW 598,989,820 for the second half-yearly amount of value-added tax in 197 caused a disaster, when the taxpayer is a national tax in the form of tax return and the defendant issued a notice of tax payment to collect the amount without correction when the taxpayer does not pay the amount in whole or in part, the notice of tax payment is merely a collection disposition referring to a request for performance or an order for performance in the process of tax collection, and it cannot be deemed that there was a tax disposition by the tax authorities (see Supreme Court Decision 94Nu910, Feb. 3, 1995). In this case, three persons including the plaintiff et al. filed the report of the above value-added tax base and the amount of value-added tax for KRW 598,989,820 for the above amount of tax at the time of the report. Thus, since the fact that the tax base and the amount of value-added tax were already determined at the time of tax return, the above amount can be viewed.

We look at the defective argument in the notice of tax payment about the amount of value-added tax imposed on the first term portion of the year of 198, 57,213,690.

① The duty payment notice that can be served on the title holder under Article 8(2) of the Framework Act on National Taxes is limited to the so-called tax payment notice that orders the performance of the specific taxation claim already established. With respect to taxes that are imposed by the method of tax payment, the duty payment notice shall be individually determined or corrected by a non-declaration or non-declaration of tax base and tax amount and shall not be individually notified to the persons jointly and severally liable for tax payment under Article 8 of the same Act. If the tax office determines or revises the tax base and tax amount and notifies the tax payment notice to the title holder, it shall not be given to the persons who are jointly and severally liable for tax payment under Article 8 of the same Act. The Plaintiff’s duty payment notice that serves as an order for the performance of the specific taxation claim upon the title holder to the ○○○○○○○○ individual, which is not the basis for the determination or correction of the tax base and tax amount, and the Plaintiff’s name and the portion of the tax payment notice that is the basis for the determination of the tax amount imposed on the ○○○○ individual.

② Since the legal nature of the annual tax liability under Article 25(1) of the Framework Act on National Taxes is not fundamentally different from that of the joint and several liability under the Civil Act, each joint and several tax obligor is jointly and severally liable for tax payment for the whole amount of national taxes related to a joint business, etc., unless otherwise specifically provided for in individual tax-related Acts, since each joint and several tax obligor is jointly and severally liable for tax payment for the whole amount of national taxes. In imposing national taxes, each joint and several tax obligor may notify each joint and several owner or joint business proprietor of the tax payment individually, and the defect of the tax assessment for one joint and several tax obligor has relative effect. Thus, the grounds such as invalidity or revocation of the tax assessment for one joint and several tax obligor are not effective against the other joint and several tax obligor (see Supreme Court Decision 9Du2222, Jul. 13, 199). The above tax payment notice cannot affect the validity of the tax payment notice to the Plaintiff, etc., and the Plaintiff’s assertion that the above tax payment notice was not made against all members of this case.

3. Conclusion

Therefore, the plaintiff's joint and several tax liability for the second term value-added tax of 198.9.820 won and the first term value-added tax of 1998, 1998, which became final and conclusive by the defendant's report on the tax base and tax amount of value-added tax or the defendant's occasional assessment determination of the second term value-added tax of 1997 as well as 57,213,690 won, as the plaintiff bears joint and several tax liability as joint and several businessmen, and as long as each of the value-added tax is in arrears and deficit disposition, the disposition that the plaintiff refused to issue the certificate of tax payment is lawful, and the plaintiff's claim of this case shall be dismissed as it is without merit. The judgment of the first instance

[Supreme Court Decision 2007Du12705 ( October 26, 2007)]

The costs of appeal are assessed against the Plaintiff.

As a result of examining all of the records of this case, the judgment of the court below, and the grounds of appeal, it is clear that the above grounds for non-trial conduct constitute grounds for appeal, the appeal shall be dismissed. It is so decided as per Disposition by the assent of