[법인세등부과처분취소청구사건][고집1980(형특),377]
Requirements for establishing secondary tax liability
In order to impose a second taxpayer on a corporation, first of all, it is necessary to legally impose a tax on the corporation as a prior requirement, and even if a group of the tax imposed on the corporation has been withdrawn, it is impossible to impose a second taxpayer without going through the procedures for notifying the second taxpayer, and such disposition is void as a matter of course.
Article 39 of the Framework Act on National Taxes and Article 16 of the National Tax Collection Act
Plaintiff 1 and one other
The director of the District Tax Office
1. On May 12, 1979, the Defendant confirmed that the disposition imposing corporate tax amounting to KRW 14,268,841 and the defense tax amounting to KRW 2,453,871 is null and void.
2. The costs of lawsuit shall be borne by the defendant.
1. (The main text of the claim is the same as the text of the claim;
2. (Preliminary Claim) The disposition of imposition of KRW 14,268,841 as corporate tax against the plaintiffs on May 12, 1979 by the defendant and KRW 2,453,871 as defense tax against the plaintiffs shall be revoked.
Litigation costs shall be borne by the defendant.
1. The defendant notified the plaintiffs of this tax as stated in the order as of May 12, 1979 to the plaintiffs, and there is no dispute between the parties concerned; Gap evidence Nos. 1-2, 4 (Notice of Determination on Each Request for Review); Gap evidence Nos. 3-1, 2-1, 4-2 (Notice of Notice of each Request for Review); and the whole purport of pleadings, the tax imposed by the defendant on the plaintiffs shall be notified to the plaintiffs by the defendant as of Jongno-gu Seoul Metropolitan City newspaper as of 11,00 address in the maritime cargo transport business (number omitted); the tax imposed by the defendant on the non-party Lone Star Partnership (the non-party corporation) as of January 1, 1975 to December 31, 197; the tax imposed on the non-party 1 as of December 30, 1978; the defendant shall be released from the tax imposed on the non-party 2 as of 19-1, 197.
2. First, it is reasonable to view the Plaintiffs’ primary claims.
The plaintiffs' attorney asserts that the disposition of imposition of this tax against the plaintiffs is based on the premise of the disposition of imposition against the non-party corporation, but there is no disposition of imposition against the non-party corporation, which is the premise of this case.
Therefore, pursuant to Article 39 (2) of the Framework Act on National Taxes, where the property of a juristic person is insufficient to cover the national tax, additional dues and disposition fee for arrears imposed or to be paid by the juristic person, the general partner and oligopolistic stockholders of the juristic person as of the date on which the liability to pay the national tax is established shall be interpreted to be established on the premise that there is a national tax, etc. already imposed on the juristic person at the time when the secondary liability to pay the tax is imposed. According to the facts acknowledged above, the defendant issued the second liability to pay the tax to the juristic person as of October 30, 1978, and deferred the collection of the tax as of November 14 of the same year, and then withdrawn the decision to impose it on the non-party juristic person as of December 14 of the same year. Accordingly, the defendant should have first notified the non-party juristic person of the second liability to impose the tax again after the revocation of the above imposition, and the defendant did not have any duty to impose the tax on the non-party juristic person for the reason that it was unlawful.
According to Article 16 (3) of the National Tax Collection Act, the defendant's litigation performer shall without delay take a procedure for imposing national taxes when he discovers the whereabouts or properties of a taxpayer even after the cancellation of the decision to impose national taxes, so the defendant asserts that since the defendant is a general partner of the non-party corporation and the plaintiffs' whereabouts and properties are found at the time of this decision, this disposition against the plaintiffs is legitimate as long as he designates the secondary tax liability against the non-party corporation and imposed this disposition. However, the above provision of the National Tax Collection Act cannot be clear to the purport that the second taxpayer's whereabouts or properties are not followed by the procedure for imposing taxes on the non-party corporation without delay and the second taxpayer's imposition procedure should not be followed against the non-party corporation. Thus, the defendant's new decision to impose taxes on the non-party corporation, which is the procedure for collecting taxes, should not be followed by the defendant's new decision to impose taxes on the non-party corporation, as well as the second taxpayer's new decision to impose taxes on the non-party corporation.
3. If so, the plaintiffs' primary claims seeking the confirmation of the original tax disposition on the premise that the original tax disposition is null and void as a matter of course are reasonable, and therefore, they shall be accepted, and the costs of lawsuit shall be assessed against the losing party. It is so decided as per Disposition by the defendant.
Judges Lee Young-soo (Presiding Judge)