Cho High Court Decision 201Do5071 (Law No. 15, 2012)

Inasmuch as an employee attorney is not in the position of the second taxpayer, the second taxpayer is not in the position.

The plaintiff was registered as a member on the register of the non-party corporation and was in the position of an employment lawyer, and thus, the second taxpayer is not in the position.

2012Guhap17940 Designation, disposition, etc. of the person liable for secondary tax payment

XX

Head of Seodaemun Tax Office

November 7, 2012

November 30, 2012

1. The Defendant’s imposition of KRW 00 of the corporate tax for the business year of 2008 (including additional tax), KRW 000 of the second-term value-added tax for the business year of 2007 (including additional tax), KRW 000 of the first-term value-added tax for the business year of 2008 (including additional tax), and KRW 000 of the value-added tax for the second-term taxable year of 2008 (including additional tax) shall be revoked.

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

The same shall apply to the order.

1. Details of the disposition;

A. On April 10, 2007, the Plaintiff was registered as a member of the corporate register of law firm XX (hereinafter referred to as “non-party corporation”) on the ground of the acquisition by transfer of part of the shares of Gangnam, the representative of which is the Plaintiff. After that, the non-party corporation closed its business on March 9, 201, and (b) as indicated in the table 1 below, the non-party corporation was in arrears with corporate tax and value-added tax as indicated in the table 1 below, and the Defendant designated the Plaintiff as the secondary tax obligor on August 23, 201 on the ground that it is the general partner of the non-party corporation, and imposed and notified the corporate tax, etc. including the additional tax, as described in the table 1 below (hereinafter referred to as the “instant disposition”).

(3) The following table 1 omitted:

C. The Plaintiff filed an appeal on October 27, 201 following the procedure for filing an objection, but was dismissed by the Tax Tribunal on May 15, 2012.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 13, 19, 20, 21, Eul evidence No. 1, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Since the non-party corporation was registered as a general partner of the non-party corporation and worked as an employment attorney, the disposition of this case, which is different from this premise, is unlawful.

(b) Related statutes;

It is as shown in the attached Table related statutes.

(c) Fact of recognition;

(1) The current shareholder status of the non-party corporation in the business year of 2007 to 2010 is as follows: GangwonA (44,000 shares), YangB (2,00 shares), the Plaintiff (2,000 shares), and the presentCC (2,000 shares).

The current status of shareholders in Table 2.

(2) The following Table 2 omitted:

(2) On August 19, 201, the Defendant issued a disposition to designate the secondary tax obligor and to impose corporate tax, etc. on both BB on the grounds that the Seoul Regional Tax Office, on January 19, 201, received wage and salary income from both BB on or after April 18, 2008 from the law firmY after April 18, 2008, and jointly operated the O legal office from April 1, 2009 to February 4, 2010, the Defendant was registered as the member of the non-party legal entity in form, and thus revoked the disposition to designate the secondary tax obligor and the disposition to impose corporate tax.

(3) The Defendant was excluded from the designation of the secondary person liable for tax payment on the ground that “The Defendant, at the time of the establishment of the liability for tax payment, opened an individual law office by withdrawing the non-party corporation and only lent its name, and did not exercise the right to operate the non-party corporation or receive money or others.”

(4) The Plaintiff received KRW 00 per month from May 10, 2007 to October 9, 2009, and KRW 000 per month from November 10, 2009 to September 10, 2010 from the non-party corporation’s own national bank account. The Plaintiff reported the earned income or paid the earned income tax as listed in the table 3 below.

Details of receipt of benefits.

(3) Table 3 omitted:

(5) On September 24, 2012, Doddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddd

(6) On September 7, 2011, H, registered as a member of the non-party legal entity, stated that “Law Firm KimE” was notarized by Law Firm AA on the same day, and attorney KimF was notarized by Law Firm W on September 8, 2011, and attorney JF served as an employment attorney in the non-party legal entity on the written statement prepared around September 8, 201, and the attorney JG served as an employment attorney in the non-party legal entity on the written statement prepared around September 201, and there was no fact of receiving investment, management participation, and profit distribution.”

[Ground of recognition] Evidence Nos. 2 through 18, Evidence Nos. 22 (including paper numbers), Evidence Nos. 1, 2, and 3, Evidence Nos. 1, 2, and 3, Testimony of Witness Dod, and the purport of the whole pleadings

D. Determination

Article 58 (1) of the Attorney-at-Law Act provides that "the provisions of the Commercial Act concerning unlimited partnerships shall apply mutatis mutandis to law firms other than those provided for in this Act," and Article 212 (1) of the Commercial Act provides that "if it is impossible to fully pay the company's debts with the assets of an unlimited partnership company, each partner shall be jointly and severally liable for payment." Meanwhile, in order to impose secondary tax liability on a general partner of a corporation pursuant to Article 39 (1) 1 of the Framework Act on National Taxes (amended by Act No. 9263 of Dec. 26, 2008), it is necessary to have the general partner who is actually in a position to participate in the operation of the corporation as of the date when the liability to pay delinquent national taxes is established, and only on the ground that the company is registered as a general partner on the register of the corporation in the form of a corporation, the liability to pay taxes shall not be imposed (see Supreme Court Decision 90Nu423

According to the above facts of recognition, DoD consistently stated that "a member registered on the corporate register shall be formally recorded in order to meet the requirements of related Acts and subordinate statutes", and all attorneys-at-law registered or employed as a member of the non-party corporation shall also state the same purport, and the plaintiff paid wage and salary income tax. Thus, since the plaintiff was registered as a member of the register of the non-party corporation and is in the position of an employment attorney, it is illegal that the disposition of this case different from this premise is not in the position of the secondary tax obligor.

3. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is decided as per Disposition.