Whether the secondary liability for tax payment of a corporation is a member attorney-at-law.

The Plaintiffs do not have any objective data to deem that the Plaintiffs paid their contributions to a juristic person and received their return while withdrawing from the company, and that there was no objective data to deem that the Plaintiffs participated in substantial management, such as receiving profits from the juristic person or participating in decision-making. Therefore, the Plaintiffs do not constitute a partner attorney-at-law with the secondary liability

Article 67 of the Corporate Tax Act

revocation of disposition of revocation of imposition of corporate tax, etc. by Suwon District Court 2016Guhap655

AAA3

K Director of the Korean Tax Office

oly 31, 2017

November 28, 2017

1. The portion exceeding KRW 50,000,00 among the lawsuits seeking revocation of the disposition of imposition of corporate tax in 2014 by Plaintiff AA shall be dismissed.

2. Each imposition disposition listed in paragraph (1) of the attached Table No. 1 as of July 28, 2015 against Plaintiff CCC; each imposition disposition listed in paragraph (2) of the same Table as of April 3, 2017; each imposition disposition listed in paragraph (1) of the same Table as of August 4, 2015 against Plaintiff DD; and each disposition of imposition listed in paragraph (2) of the same Table as of April 3, 2017, shall be revoked.

3. Plaintiff BB’s claim and Plaintiff AA’s remaining claims are dismissed, respectively.

4. Of the costs of lawsuit, the part arising between the plaintiffs BB, AA and the defendant shall be borne by the above plaintiffs,CC, DD and the defendant respectively.

Cheong-gu Office

Disposition No. 2 and the Defendant’s disposition of imposition on Plaintiff BB as of July 28, 2015, and the disposition of imposition as of April 3, 2017, listed in paragraph (2) of the attached Table No. 2 of the same List, the disposition of imposition as of April 28, 2017, and the disposition of imposition as of July 28, 2015, listed in paragraph (2) of the same Table against Plaintiff AB, and the judgment seeking revocation of the disposition of imposition as of April 30, 2017.

1. Basic facts

A. "TB is a legal entity established on September 13, 2002 for the purpose of performing the duties of attorney-at-law. The plaintiff BB is from October 20, 2005 to the present date; the plaintiff AA is from March 29, 2010 to July 27, 2015; the plaintiff CCC was registered as a member of the above legal entity from January 31, 2006 to September 18, 2015; the plaintiff DD was registered as the member of the above legal entity from May 1, 2013 to September 18, 2015; the defendant, on May 2, 2014, designated the plaintiff BB as the taxpayer for the pertinent legal entity from October 20, 2005 to the present date; the plaintiff CCC was not registered as the taxpayer for the pertinent tax years, from March 29, 2010 to the 2010, 2010, 2010.

C. In addition, the Defendant: (a) designated the Plaintiffs, who were registered as members of the instant corporation during the same period, as the secondary taxpayer for corporate tax of 2014; (b) KRW 5,185,870 for the second year value-added tax of 2016 (2,275,90 for the second year value-added tax of 2,279,880 for the second year + (2,90 for the second year value-added tax of 2016); (c) KRW 335,590 for the seventh year of 2016; and (d) imposed corporate tax of KRW 1,02,510 for the seventh year of 200 for the first year; (b) designated the Plaintiffs as the members of the instant corporation as the second taxpayer for corporate tax of 2014; and (c) imposed the Plaintiff’s tax of KRW 30 for the Plaintiff on April 30, 2017; and (d) imposed the Plaintiff’s tax disposition of 20D and the first year of 20.30.

D. Although the Plaintiffs filed a tax appeal with the Tax Tribunal seeking the revocation of each disposition of imposition set forth in the above Paragraph (b) above, the Tax Tribunal rendered a decision to dismiss the Plaintiffs’ claims on March 15, 2016 (Case Number: Case Number: 4570, 4696, 5818 (Joint)), Plaintiff BB, CCC, and DD filed a tax appeal seeking the revocation of each disposition of imposition set forth in the above Paragraph (c) with the Tax Tribunal, but the Tax Tribunal rendered a decision to dismiss the above Plaintiffs’ claims on September 6, 2017 (Case Number: Case Number: 205, 306, 307 (Joint)), and Plaintiff AA claimed a tax appeal seeking the revocation of the disposition of imposition set forth in the above Paragraph (c) to the Tax Tribunal on June 9, 2017.

2. Determination of legality of a part of the lawsuit against Plaintiff AA

A. We examine whether the Defendant’s lawsuit on April 30, 2017 regarding the part on the claim for revocation of additional dues among the disposition imposing corporate tax on Plaintiff A for the business year 2014 against Plaintiff A is legitimate.

B. According to Article 21 of the National Tax Collection Act, if the national tax is not paid by the due date, it naturally occurs under the provisions of the Act without the final procedure of the competent tax office, and thus, the notice of additional dues or increased additional dues cannot be deemed a disposition subject to appeal litigation (see, e.g., Supreme Court Decision 2005Da15482, Jun. 10, 2005). According to the written evidence No. 39, and the whole purport of pleadings, the Defendant notified Plaintiff AA of the payment of corporate tax for the business year 2014, which was delinquent by the corporation of this case, KRW 50,00,00, KRW 8,100,000 (=7,50,000 + KRW 600,000).

C. Therefore, the portion exceeding KRW 50,000,00 among the lawsuits seeking revocation of the disposition of imposition of corporate tax for the business year 2014 against Plaintiff A in excess of KRW 50,00 (additional charge of KRW 8,100,000) is unlawful as it seeks revocation of a disposition not subject to appeal litigation.

3. The plaintiffs' assertion

A. Plaintiff BB, AA

① Since each disposition of imposition of corporate tax and value-added tax on the instant corporation, which is the principal taxpayer, is currently pending in the lawsuit, it is unreasonable to impose secondary tax liability on the Plaintiff BB and AA regarding each of the instant dispositions. ② The instant corporation was operated with separate accounts by dividing Plaintiff BB’s principal office, Plaintiff AA’s broad name branch, and EE’s Seoul branch office (this case’s separate accounting). Each of the instant dispositions pertains to two case’s noise litigation cases involving aircraft noise conducted independently by EE affiliated with the Seoul branch office, and thus, Plaintiff BB and AA did not have any obligation to pay the said disposition. ③ Even if Plaintiff BB and AAA are recognized, each of the instant dispositions should be imposed in proportion to the respective shares of the Plaintiffs. Therefore, each of the instant dispositions should be revoked in a unlawful manner.

B. Plaintiff CCC, DD

Although Plaintiff CCC and DD are registered as a general partner of the instant legal entity, it is not an actual partner attorney-at-law since they did not actually act as a member of the instant legal entity, such as making contributions, participating in the operation of the instant legal entity, receiving dividends, etc. Accordingly, Plaintiff CCC and DD did not bear a liability to pay unpaid tax of the instant legal entity in light of the substance over form principle. Accordingly, each disposition of this case should be revoked in a way that is unlawful.

In addition, the money received by the EE from the instant corporation cannot be deemed as a bonus (Plaintiff CCC, DD’s assertion), and national tax should be first appropriated to the corporate property, and only the shortage must be imposed (Plaintiff CCC’s sole assertion). The time when the secondary tax liability is established following the failure to withhold tax on wage and salary income is not the date when the notice of change in income was served but the income amount belongs to the EE, and it is before Plaintiff DD enters the instant corporation (Plaintiff DD’s sole assertion) and on other premise, each of the instant dispositions on wage and salary income tax imposed on the said corporation and the above wage and salary income tax should be revoked illegally.

4. Related Acts;

It is as shown in the attached Table related statutes.

5. Determination of legality of a disposition

A. Determination as to Plaintiff BB and AA

1) In the case of Plaintiff AA, without going through an administrative appeal against the disposition of imposition of 1. C., but on June 9, 2017, a tax appeal was filed, and no decision was made by the lapse of 60 days, so there is no need to go through an administrative appeal ruling pursuant to Article 18(2)1 of the Administrative Litigation Act.

2) Determination on the first argument

A) Since the secondary taxpayer's tax liability stipulated in Article 39 of the Framework Act on National Taxes has an influence and supplement in relation to the so-called taxpayer's tax liability, in order to issue a payment notice to the secondary taxpayer, the original taxpayer's tax liability should be specifically determined first, but the original taxpayer's tax liability should be determined first, but the payment notice can only be given to the secondary taxpayer with regard to the amount that is insufficient to appropriate the national tax, additional dues, and disposition fee for arrears to be collected as a result of the disposition on default, and even if the disposition on default is conducted on the property of the original taxpayer for the disposition on default, it is recognized that it is insufficient to appropriate the national tax to be collected, additional dues, and disposition fee for arrears (see, e.g., Supreme Court Decision 87Nu415, Jul. 11, 19

B) The Defendant imposed corporate tax, value-added tax, and wage and salary tax on the instant corporation as indicated in the separate sheet Nos. 1 and 2 regarding each of the instant dispositions. The said corporation defaulted as seen earlier. On June 17, 2014, the instant corporation filed a lawsuit against the Defendant on May 2, 2014 against the Suwon District Court for the imposition of corporate tax of 32,858,120, 200, 2010, 2010, 19,50, 160, 200, 300, 270, 501, 501, 717, 980, 2011, 200: The Seoul High Court rendered a final judgment of 2015, 205, 206, 250, 206, 207, 205, 206, 207, 2017:

C) In light of the above legal principles and the facts of recognition, so long as the corporation of this case, which is the main obligor, did not pay taxes, the defendant may impose each of the instant dispositions on the plaintiff BB and AA, regardless of whether the pertinent case is pending, regardless of whether the pertinent case is pending, and further, as long as the judgment of losing the corporation of this case was final and conclusive in the relevant case, each of the instant dispositions cannot be deemed unlawful on the grounds of the nature and supplement of the secondary tax liability. Therefore, the plaintiff B and AA’s allegation on this part is not accepted.

3) Determination on the second argument

The so-called "Separate Law Firm" alleged by Plaintiff BB and AA is not an internal agreement that members of each of the offices of this case or attorneys-at-law accepted by them in the course of performing their duties as attorneys-at-law, or that they performed their duties as attorneys-at-law in an independent position separate from that of the above corporations, not an internal agreement to bear operating costs or to distribute profits generated by them according to the case or the details of the performed duties as attorneys-at-law. Therefore, it is difficult to deem that Plaintiff B and AA, a member of the corporation of this case, or an attorney-at-law, as a substantive subject separate from the above corporation in relation to the performance

4) Judgment on the third argument

Article 39 of the Framework Act on National Taxes provides that if the property of a corporation is insufficient to cover the national tax, additional dues, and disposition fee for arrears imposed on or to be paid by the corporation, the general partner with unlimited liability as of the date of establishment of national tax liability shall be liable for the second liability for the shortage. Article 58(1) of the Attorney-at-Law Act provides that Article 212 of the Commercial Act prescribing the unlimited joint and several liability of the members of the partnership company with respect to the law firm shall apply mutatis mutandis. Since the plaintiffs BB and AA recognize the fact that they are members of the partnership company of this case (see the petition Nos. 3 and 4) and the plaintiffs BB and AA recognize the fact that they are members of the partnership company of this case (see the petition Nos. 3 and 4), they shall not be subject to

B. Determination as to Plaintiff CCC and DD

1) In order to impose secondary tax liability on a general partner of a corporation pursuant to Article 39 subparag. 1 of the Framework Act on National Taxes, it is required that the general partner of the corporation is in a position to substantially participate in the operation of the corporation as of the date on which the liability to pay delinquent national taxes is established, and merely on the ground that the company is registered as a general partner in the corporate registry in form, the liability to pay taxes can not be imposed as a general partner (see, e.g., Supreme Court Decision 90Nu4235, Sept. 28, 1990). Such legal doctrine also applies to a person

2) Meanwhile, in general, the burden of proving the fact of taxation requirements exists in a lawsuit seeking revocation of a tax imposition disposition. However, in cases where it is proved that the fact of taxation requirements has been presumed in light of the empirical rule in the specific litigation process, unless it proves that the person liable for duty payment is inappropriate to apply the empirical rule or that there are special circumstances to exclude the application of the empirical rule in a case, it cannot be readily concluded that the taxation disposition is an unlawful disposition that fails to meet the taxation requirements (see, e.g., Supreme Court Decision 2015Du60341, Jun. 10, 2016

3) In full view of the following circumstances, Gap evidence Nos. 1, 8, 19, 27, 30, 31, 32, and 41, Eul evidence Nos. 7-3, Eul evidence Nos. 7-3, and Eul evidence Nos. 7-3, YY2, 32, 31, 32, and 7-7, as a result of the fact-finding conducted by the President of the YU and the President of the U.S., the circumstance and evidence cited by the defendant alone are insufficient to recognize that the plaintiff CCC and DD are in the secondary taxpayer status, and there is no other evidence to acknowledge this differently, and therefore, it is reasonable

① 이 사건 법인에서 근무한 QQQ, WWW, RRR, 원고 BBB는 별지 목록 제4항 기재와 같은 내용의 확인서를 작성하였는데, 위 이정하 등의 진술에 비추어 보면원고 CCC, DDD은 변호사법상의 구성원 보충을 위하여 이 사건 법인에 영입되었고, 위 법인의 지분 양도 및 양수에 대한 대가로 금원을 수수한 사실이 없으며, 이 사건 법인에 재직하는 동안 법인의 운영에 관여한 사실은 없는 것으로 보인다.

② As shown in the [Attachment List No. 3, Plaintiff DD reported earned income or paid labor income, and Plaintiff BB also paid Plaintiff DD a monthly wage of 4 million won and 50% performance bonus of the case that Plaintiff DD individually accepted (Evidence A 27). Plaintiff DD appears to have received wages from the instant legal entity as an employment attorney.

③ From January 31, 2006, Plaintiff CCC was registered as a member of the instant legal entity from January 31, 2006 to the date. However, Plaintiff BB testified testified that RB had been registered as a member of the instant legal entity was present as a witness in the lawsuit brought against the Defendant (U.S. District Court 2016Guhap64105 case) by asserting that it was not a actual member, and that RB’s legal representative was revised in March 2010. In this case, Plaintiff BB testified that “B was a member meeting in TB law,” and that “BB was actually low as a member of AA and EE three persons.” Meanwhile, Plaintiff BB testified that it was difficult for Plaintiff BB to establish the 30,000 won investment funds under the Articles of Incorporation (BB) and that it was difficult for Plaintiff BB to separately establish the 30,000 EB testimony as a witness of the instant legal entity (the 30,000).

④ In addition, there is no other financial data such as the details of account transfer, which can be seen as having been returned when the Plaintiff CCC and DD actually paid contributions to the instant corporation, and in the case of Plaintiff DD, there is no objective data to deem that the said Plaintiffs received profits from the said corporation or participated in the decision-making of the said corporation, etc.

⑤ Considering the circumstances, it is reasonable to deem that Plaintiff DD was in the position of employment attorney-at-law of the pertinent legal entity, and Plaintiff CCC was not in the position of substantially participating in the operation of the instant legal entity as a general partner. Since the said Plaintiffs were registered as an attorney-at-law on the registry, it is not different even if they were registered as a member, it cannot be deemed that the said Plaintiffs were in the position of secondary taxpayer for tax

6. Conclusion

Therefore, the part exceeding KRW 50,00,00,00 among the lawsuits seeking revocation of the disposition of imposition of corporate tax for the business year 2014 by Plaintiff AA is unlawful and dismissed. Each claim by Plaintiff CCC and DD is justified and acceptable. The claims by Plaintiff BB and the remaining claims by Plaintiff AA are dismissed as it is without merit. It is so decided as per Disposition.

Related Acts and subordinate statutes

【National Tax Collection Act

Article 21 (Additional Dues)

(1) If national taxes are not paid in full by the payment deadline, such national taxes in arrears shall expire.

A surcharge equivalent to 3/100 of the Act shall be collected.

(2) If delinquent national taxes are not paid, when one month elapses from the date on which the time limit expires.

(c) collected additional charges equivalent to 12/100 of the delinquent national taxes in addition to the additional charges under paragraph (1);

(c) Provided, That this shall not apply where the amount of national tax in arrears by tax payment notice and by tax item is less than one million won;

(3) The period for collection of additional dues under paragraph (2) shall not exceed 60 months.

(4) Paragraphs (1) and (2) shall apply to the State and local governments (including the association of local governments).

subsection (b).

(5) Paragraph (2) shall apply where the collection of arrears is deferred on the grounds that the mutual agreement procedures are in progress.

special cases concerning additional dues under Article 24 (5) of the Adjustment of International Taxes Act shall apply without regard to such additional dues.

【National Tax Basic Act

Article 39 (Secondary Liability to Pay Taxes by Investor)

National taxes, additional charges, and disposition fees for arrears imposed or payable by the corporation as property of the corporation.

any of the following subparagraphs as of the date on which the liability to pay national taxes is established, if the amount falls short of such amount:

A person shall have secondary tax liability for the shortage amount: Provided, That in cases of an oligopolistic stockholder pursuant to subparagraph 2, he/she shall have secondary tax liability.

the corporation's total number of outstanding shares of the corporation (not including non-voting shares; hereafter the same shall apply in this section).

(u) Stocks with which the oligopolistic shareholder exercises a substantial right to the amount divided by or out of the total investment amount.

The amount shall be limited to the amount calculated by multiplying the number (excluding non-voting stocks) or the amount of investment.

1. General partners;

2. Any stockholder or one limited partner and his/her related persons prescribed by Presidential Decree, who are their actions;

50/100 of the total number of issued stocks or total amount of investment of the relevant corporation;

- 16 -

person who is in excess and exercises a substantial right thereto (hereinafter referred to as “ oligopolistic stockholder”)

/ Attorney-at-Law

Article 58 (Other Acts Applicable Mutatis Mutandis)

(1) Except as otherwise provided for in this Act, the provisions of the Commercial Act governing unlimited partnerships shall apply mutatis mutandis to law firms.

(c)

/ Commercial Act

§ 212. Liability of members

(1) If it is impossible to fully repay obligations owed to a company with its assets, each member shall be jointly and severally liable for the repayment thereof.

section 1.

(2) Paragraph (1) shall also apply if a compulsory execution on the company's assets has proved ineffective.

(3) The provisions of the preceding paragraph shall apply if a partner proves that he has sufficient means to discharge his company and is easy to enforce it.

shall not be used.

Finally.