In a case where a disposition to impose a tax on a principal taxpayer becomes null and void due to lawful service, and the designation of the secondary tax obligor and the disposition to impose a tax are served on the principal taxpayer pursuant to the judgment that the designation of the secondary tax obligor and the disposition to impose a tax are null and void, whether the designation of the secondary tax obligor and the disposition to impose a tax again constitutes a disposition to implement the judgment

The purport of the judgment of the previous administrative litigation is that the designation of the secondary tax obligor and the disposition of imposing the tax is invalid because the disposition of imposing the tax on the main taxpayer becomes invalid due to the determination of lawful service, and therefore, the designation of the secondary tax obligor and the disposition of imposing the tax are not deemed to constitute a disposition to implement the judgment, etc. under Article 26-2 (2) of the Framework Act on National Taxes.

Article 26-2 of the National Tax Basic Act

Kim Jong-hun

Head of Seodaemun Tax Office

1. On July 2, 1991, the defendant designated the plaintiff as the second taxpayer of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company

2. The costs of lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. Circumstances and relevant facts of the disposition;

The following facts are acknowledged in full view of the facts without dispute, Gap evidence 1, Eul evidence 1, Eul evidence 1-2, Eul evidence 3, Eul evidence 8, and the whole purport of the pleading.

A. On March 3, 1986, the plaintiff filed a lawsuit against the defendant to confirm that the disposition of value-added tax and corporate tax imposed on the non-party 1's second taxpayer designated by the defendant as the non-party 1 (hereinafter "non-party 1") against the plaintiff on the plaintiff on March 3, 1986 was null and void. The Seoul High Court rendered a favorable judgment against the plaintiff on December 20, 1989. The defendant appealed against the above judgment, but the Supreme Court rendered a final judgment of dismissal of the appeal against the plaintiff on September 11, 1990.

B. In the above final and conclusive judgment, the Defendant cannot be deemed to have lawfully served a tax notice on the non-party company, which is the principal taxpayer of the above tax, and thus, the second taxpayer designation and its taxation disposition against the Plaintiff were made without a final and conclusive tax liability for the principal taxpayer, and thus, it was determined that the defect in the disposition procedure is clearly and seriously null and void.

C. On May 14, 1991, the defendant again closed the non-party company's bankruptcy on May 14, 1985, and the office is missing, the defendant sent a notice of each tax as specified in the attached Table 2 (in addition to the taxes listed in the attached Table 1 list 3,5 added 2 to 3, and 5 in the attached Table 2 list) to Kim Jong-dong, the representative director of the company, by registered mail, and lawfully delivered the registered mail because the registered mail was not returned. In accordance with Article 39 subparagraph 2 of the Framework Act on National Taxes and Article 20 subparagraph 1 of the Enforcement Decree of the same Act, the plaintiff was the oligopolistic shareholder of the non-party company, and the plaintiff was the oligopolistic shareholder of the non-party company, and imposed each tax on the non-party company as specified in the attached Table 2 list designated as the second taxpayer of the non-party company (hereinafter referred to as the "instant disposition").

2. Whether the instant disposition is valid

A. The Parties’ assertion

Article 26-2 (1) 1 of the Framework Act on National Taxes provides that each tax imposition disposition on the non-party company, the main taxpayer of which is the non-party company, in accordance with the main sentence of Article 26-2 (1) 1 of the Framework Act on National Taxes, shall be imposed after the lapse of five years from the date on which the period of exclusion expires, and that defect is apparent, obvious, and invalid. Thus, the Plaintiff asserts that the designation of the secondary taxpayer and the instant disposition, which is a tax disposition, are substantially complementary to the Plaintiff, are invalid

On the other hand, the defendant asserts that even after the expiration of the exclusion period in the case where an administrative litigation is filed pursuant to Article 26-2 (2) of the Framework Act on National Taxes, the designation of the second taxpayer and the disposition of the second taxpayer can be made within one year from the day when the judgment became final and conclusive, and that even in the case of this case, the designation of the second taxpayer and the disposition of the second taxpayer can be made within one year from September 11, 191, which was the day when the judgment became final and conclusive and conclusive, new notice of tax payment to the non-party company, the principal taxpayer, in accordance with the contents of the final and conclusive judgment, and thereby, new designation and disposition of the second taxpayer are made to the plaintiff.

(b) Markets:

(1) Grounds for invalidation

In the case of corporate tax (including the same defense tax) for which the deadline for filing each tax base listed in the separate sheet No. 2 attached to the non-party company, the principal taxpayer of this case, is the filing date of each tax base listed in the separate sheet No. 2 attached to the separate sheet No. 3794, Dec. 23, 1985; with respect to the two joints of the separate sheet No. 2 of the separate sheet No. 2 of the separate sheet No. 2 of the previous Corporate Tax Act (amended by Act No. 3794 of Dec. 23, 1985), Article 26 (3) and (1) of the previous Corporate Tax Act (amended by Act No. 3794 of Sep. 30, 1983) which is 60 days from Sep. 29, 1983; and even if it is deemed that the last date of each year is the non-party company's imposition date of value-added tax No. 165, Dec. 14, 1986

Therefore, each tax imposition disposition against the non-party company on May 14, 1991, which was later made after the expiration of the exclusion period, shall be null and void, as it is a disposition after the expiration of the exclusion period, and its defect is obvious and serious. Accordingly, the designation of the second taxpayer against the plaintiff who has the supplementary nature and the disposition of this case, which is the disposition, shall not be null and void even if the defect is obvious and serious.

(2) Determination on the Defendant’s assertion related to Article 26-2(2) of the Framework Act on National Taxes

First of all, since the taxes of Nos. 3 and 5 among the taxes listed in the attached Table 2 were added to those not from the taxes listed in the attached Table 1, it shall be deemed that they are irrelevant to the implementation of the above final judgment.

Therefore, it is reasonable to view each tax of the remaining items among the taxes listed in the attached Table 2.

The purpose of Article 26-2 (2) of the Framework Act on National Taxes is to properly adjust tax liability of taxpayers by allowing them to make necessary dispositions, such as decision of correction, for taxpayers dissatisfied with the decision, within one year from the date when the decision became final and conclusive, even in cases where the limitation period of the continuing tax imposition right has expired as a result of an administrative litigation, etc. disputing the taxation disposition.

In the instant case, the purport of the final and conclusive judgment is that the designation of the secondary taxpayer and the imposition disposition of each tax on the Plaintiff is null and void by rendering lawful service as a result of the supplement of the principal tax liability. Therefore, the Defendant’s new duty payment notice to the principal taxpayer and subsequent disposition of imposing each tax on the Plaintiff when designating the secondary taxpayer is based on the same purport is the provision under the Framework Act on National Taxes. Therefore, the content of the relevant judgment is not that implemented in the sense of adjusting the Plaintiff’s tax liability for the Plaintiff.

In addition, the above final judgment is a judgment on whether the designation of the secondary taxpayer and the disposition of imposition thereof are invalid between the plaintiff and the defendant, and since the judgment was not made between the non-party company and the main taxpayer, the new service of the notice of tax payment to the non-party company cannot be deemed as a measure to implement the above final judgment that is not directly related to the non-party company's

Therefore, the defendant's disposition of this case cannot be viewed as a case where the decision of correction or other necessary disposition is made according to the decision within one year from the day when the decision is made under Article 26-2 (2) of the Framework Act on National Taxes. Thus, the defendant's argument based on the opposing opinion is without merit.

3. Conclusion

Therefore, since the disposition against the plaintiff of this case against the plaintiff of this case is not invalid, the plaintiff's claim seeking confirmation of nullity is justified, and the lawsuit costs are assessed against the defendant who has lost, and it is so decided as per Disposition (attached Form omitted).

Judges Cho Young (Presiding Judge)