Cho High 2012 Mine1232 (Law No. 11. 2012)

No secondary tax liability shall be imposed on the general partner in form.

Although the plaintiffs are registered as members of the non-party corporation, they were registered as members of the non-party corporation in the form of a non-party corporation rather than in a position to actually participate in the operation of the non-party corporation with unlimited liability. Thus, the instant disposition imposing secondary tax liability on the plaintiffs is unlawful as it violates the principle of substantial taxation.

2012 disposition of revocation of imposition of value-added tax, etc.

Park A. 6 others

The director of Gwangju Tax Office

January 17, 2013

February 20, 2013

1.The defendant is the defendant, and

(a) the corporate tax, and value-added tax disposition, as set out in the Schedule I, for the plaintiffs ParkA, OB, and for theseCC and Mediation, and for these;

(b) the corporate tax, value-added tax, and wage and salary tax disposition listed in the Schedule 2 set out for the plaintiff SongE, and KimF; and

C. The corporate tax listed in the attached Form 3, value added tax, and wage and salary tax are imposed for the plaintiff Gangnam, and each disposition is revoked.

2. The costs of the lawsuit are assessed against the defendant.

As set forth in the text.

1. Details of the disposition;

A. HH joint corporation of certified judicial scriveners (hereinafter “Nonindicted Corporation 1”) was established on February 7, 2007 for the purpose of a certified judicial scrivener business, etc., and was dissolved on January 24, 2008, and H H H H Hro joint corporation of certified judicial scriveners (hereinafter “joint corporation of certified judicial scrivener”) was established on April 3, 2008 for the purpose of a certified judicial scrivener business, etc., and was dissolved on August 22, 2011.

(b) The defendant did not pay value-added tax by the due date, and (ii) notified that the plaintiff ParkA, EulB, thisCC, and ChoD should be designated as the secondary taxpayer of the non-party 1, and that the above plaintiffs should pay the aggregate of the corporate tax, etc. stated in the list column on the date stated in the list column for the attached list No. 1 (hereinafter in this case 1) and that the plaintiff Song E, and KimF should be designated as the second taxpayer of the non-party 1 and the second taxpayer of the non-party 2 and the above plaintiffs should be notified that the sum of the corporate tax, etc. stated in the list No. 3, and that the plaintiff 2, as of the date stated in the list No. 2, should be notified that the above plaintiffs should be paid KRW 00 (hereinafter in this case 2,00,000,000,000,0000,000,000 won, and the list No. 3,000,000.

3.2. Although the Tax Tribunal requested for a trial, the Tax Tribunal dismissed the Plaintiffs’ request on May 11, 2012.

[Grounds for Recognition] The facts without dispute, Gap evidence 1 through 7, Eul evidence 9, and Eul evidence 1, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiffs' assertion

The plaintiffs were registered as members of non-party 1 or non-party 2 in form so that they can establish and maintain non-party 1 and two corporations upon the request of Kim II (in the case of plaintiff KimF and plaintiff Song E, it is registered as members of non-party 1 and corporation 2). There was no actual investment or management by non-party 1 and corporation 2. Therefore, the plaintiffs cannot be actually members of non-party 1 and corporation 2, and therefore, they are not subject to secondary tax liability under Article 39 (1) 1 of the Framework Act on National Taxes.

B. Relevant statutes

Attached Table 4 shall be as stated in the relevant statutes.

(c) Fact of recognition;

1) Kim II worked as a court rehabilitation commissioner and decided to establish a joint corporation of certified judicial scrivenerss specializing in individual rehabilitation and bankruptcy after retirement from office around 2007.

2) However, in order to incorporate the joint corporation of certified judicial scriveners, five or more certified judicial scrivenerss are required under Article 35 of the Certified Judicial Scriveners Act, and two or more of them are persons engaged in the affairs of certified judicial scrivener for not less than 10 years, and Kim II requested that the plaintiff Park Park Park-A, and OB be a certified judicial scrivener in form, but not sending the necessary documents to the plaintiff Park-A, OBB, and this request that the plaintiff Park Jae-B, and Song E (Plaintiff Song E shall be in the marriage relationship with Kim II), and that the plaintiff Cho-D, and KimF shall receive the benefits after being registered as a certified judicial scrivener in form, and received the necessary documents therefor from the plaintiff Ko-E, Ko-D, and ChoF who consented to this request.

3) On February 7, 2007, Kim II invested KRW 000, establishing a non-party 1 corporation, and registered Kim II in the corporate registry that Kim II invested KRW 00, the plaintiff CC, OO, and Mad, and KimF in each of 00 won.

4) Around April 2007, Plaintiff ParkA, and BB sent documents necessary for the registration of their members at the latest later, Kim II, on April 13, 2007, transferred 00 won for each of the shares of the Plaintiff thisCC, the SongE, and ChoD, and KimF, and 200,000 won for each of the shares of the Plaintiff Park ParkA, and Kim II to the Plaintiff ParkBBB, and registered Plaintiff ParkB and OB as a certified judicial scrivener.

5) Meanwhile, at the time of incorporation of non-party 1 corporation, the OOOOO in Gwangju Dong-gu was registered as its principal office, 000 OOO00 in Gwangju Dong-dong, OO00 in Jeonnam-dong, O000 in Jeonnam-dong, and O000 in Jeonnam-dong O00 (Yannam-do branch) in Jeonnam-nam, Jindo-do, 17 April 2007, and O00 in Jeonnam-si, O00 in 000 OO0 in Jeonnam-dong, O00 (SO00 in order branch) in the branch office, and the plaintiff CC and OB in Jindo-dong branch, and the plaintiff CC and OB in Jindo-dong branch were personalized from this incorporation to the non-party 1 corporation.

6) At the principal office of the non-party 1 corporation, Kim II accepted the case of personal scars and bankruptcy, filed a report on acceptance in the name of the corporation only for the case that the person in question accepted, and employed the plaintiff Cho Jae-O and paid the plaintiff KimF the amount of KRW 2 million to the plaintiff KimF, and the plaintiff KimF paid the plaintiff KimF the amount of KRW 00,000,000, and the plaintiff CC, EE, ParkA, and OB did not participate in the management of the non-party 1 corporation on separate accounts, such as making a report on global income tax on the basis of the operating income of the above individual certified judicial scrivener office and giving monthly salary.

7) On January 24, 2008, Kim II, after the dissolution of the non-party 1 corporation on January 24, 2008, requested the friendly acceptance, the plaintiff SongE, and the Gangnam to become a certified judicial scrivener in the form of a member, and established the non-party 2 corporation on April 3, 2008 by requesting the representative of the non-party 1 corporation to be the plaintiff KimF.

8) In establishing a non-party 2 legal entity, all of the investments of KRW 50 million were borne by Kim II, while in the corporate register, Kim II was recorded as having invested KRW 40,000,00,000,00,000,000,000,000,000,000,000,000,000,000

9) At the time of incorporation of Non-Party 2, the non-party 2 registered the 000 (000 OOOOOO 00 in Gwangju Dong-gu, the 000 OOOOOO 00 in Jeonnam-gu, the 000 OOOOOri 00 in Jeonnam-nam-do, and the 000 OOri 000 in Jeonnam-nam-do, Jeonnam-do, as a branch office, and the plaintiff Kudo-do-do-do-Eup has been JJari office as an individual certified judicial scrivener before the incorporation of the non-party 2.

10) Plaintiff KimF received the same wages as before, and worked in the principal office of Nonparty 2, and Plaintiff SongE, and KangG were individually engaged in the management of Nonparty 2 until the dissolution of Nonparty 2, and each of them individually made a separate account, such as filing a global income tax return on the basis of the operating income of a certified judicial scrivener office and providing staff monthly pay.

[Grounds for Recognition] The descriptions of Gap evidence 10 to 36, the testimony of the witness Kim II, and the whole purport of the pleading

D. Determination

Except as otherwise provided by this Act, Article 47(2) of the Certified Judicial Scriveners Act provides that the provisions concerning unlimited partnerships in the Commercial Act shall apply mutatis mutandis to the joint corporation of certified judicial scrivenerss, and Article 212(1) of the Commercial Act provides that each member shall be jointly and severally liable for payment of the company's obligations when the company's obligations cannot be fully paid with its assets. On the other hand, Article 39(1)1 of the Framework Act on National Taxes aims to impose the secondary liability for payment on the general partners of the corporation under Article 39(1)1 of the Framework Act on National Taxes.

On the other hand, only if it is registered as a general partner on the corporate registry, the liability to pay taxes can not be imposed on the part of the general partner (see Supreme Court Decision 90Nu4235, Sept. 2, 1990). The following circumstances acknowledged by the above facts of recognition and the evidence presented above, namely, at the time of establishment of the non-party 1 and the non-party 2, Kim II invested all in cash, and the non-party 1 and the non-party 2 did not contribute cash differently from that recorded on the corporate registry, and the non-party 1 and the non-party 2 was paid a certain amount of wages each month in return for providing labor to the non-party 1 or the non-party 2 corporation. Thus, the above plaintiffs' labor relations cannot be deemed to have invested in the non-party 1 or the non-party 2 corporation, and the non-party 2 and the non-party 21 and the non-party 21 and the non-party 20 were also listed in the corporate registry register, and the non-party 1 and its branch.

“H Certified Judicial Scriveners” in the name of Nonparty 1, 100 won, and 00 won on March 23, 200, and 25 April 28 of the same year, and 00 won on May 29 of the same year, and 00 won on June 3 of the same year, and 00 won on January 8, 2008, and 00 won on the account of Nonparty 1, under the premise that Nonparty 2 was in violation of the above 0.0 billion won, and that the amount was in violation of the above 0.0 won on July 12 of the same year, and that the amount was in violation of the above 0.0 won on account of Nonparty 1, 200, and that the amount was in violation of the above 0.0 won on account of Nonparty 1’s stock transfer from Nonparty 2, and that was in violation of the above 0.0 billion won on account of the above 0.0 billion won on account of the above 0.

3. Conclusion

If so, all of the plaintiffs' claims are reasonable, it is decided as per Disposition by admitting them.