Main Issues
Where the head of a tax office fails to issue a notice of payment to a person liable for secondary tax payment pursuant to Article 12 of the National Tax Collection Act, whether to confirm a tax claim against the person liable for secondary tax payment (negative) and not soliciting national taxes (negative)
Summary of Judgment
The secondary liability for tax payment is established separately from the main liability for tax payment. It is abstractly established by the occurrence of legal requirements, such as the shortage of collection to the main taxpayer, but in detail, it is finalized by the notice of payment stipulated in Article 12 of the National Tax Collection Act by the notice of payment under Article 35 of the Framework Act on National Taxes, and it shall be based on the secondary liability for tax payment (i.e. the due date designated by the notice of payment under Article 12 of the National Tax Collection Act) even on whether the secondary liability for tax payment is recognized. Thus, if the chief of a tax office did not issue a notice of payment to the oligopolistic shareholder (the second taxpayer) of the main taxpayer, if he did not issue a notice of payment by the notice of payment, the claim and the due date for payment to the above oligopolistic shareholder of the State can not be determined specifically and specifically, and it is impossible
[Reference Provisions]
Articles 22(1), 35, and 40 of the Framework Act on National Taxes, Article 12 of the National Tax Collection Act
Plaintiff-Appellee
Korea
Defendant-Appellant
Industrial Bank of Korea Law Office of Han-U.S. and 4 others
Judgment of the lower court
Seoul High Court Decision 89Na15927 delivered on July 24, 1989
Text
The part of the lower judgment against the Defendant on the claim for gold 7,742,780 won and damages for delay shall be reversed, and this part of the case shall be remanded to the Seoul High Court.
The defendant's remaining appeals are dismissed.
The costs of appeal dismissed above are assessed against the defendant.
Reasons
We examine the grounds of appeal.
1. As to the second ground for appeal:
According to the reasoning of the judgment below, the court below found that the defendant bank applied for voluntary auction on the real estate of this case at the time when it was found to have registered the establishment of a mortgage on the non-party Special Machinery Co., Ltd. as collateral for the non-party special machinery Co., Ltd. on the non-party 1's credit, and the non-party 60,000 won was sold at the time of auction on October 21, 1986, and the non-party 53,649,000 won was delivered to the non-party Seoul Special Metropolitan City Co., Ltd. (Yyoung-gu Office) who registered the attachment of the above real estate, after deducting the lease deposit from the non-party 1, the non-party 2, who was the non-party 6's oligopolistic shareholder of this case from the non-party 2, the court below did not receive the above notice of the public auction of this case from the non-party 1, the court below's decision that the non-party 2, who was the oligopolistic shareholder of this case, was due to the above notice of payment.
2. On the first ground for appeal:
According to the reasoning of the judgment below, the court below rejected the above assertion by the defendant bank, on the ground that the head of the Guro Tax Office did not notify the non-party company's second taxpayer of the payment of the value-added tax and the additional dues thereto at the time of July 1986 on the non-party company's raw materials, so it did not notify the non-party company's second taxpayer of the payment of the above tax liability. Thus, the defendant bank's assertion that the defendant bank did not notify the above taxpayer of the payment of the above taxes on the non-party company's payment of the above taxes on the non-party company's assertion, although it is acknowledged that the former head of the Guro Tax Office did not notify the non-party company of the payment of the above taxes on the non-party company's claim, but the non-party company notified the non-party company of the payment of the above value-added tax on the non-party
However, the secondary liability for tax payment is established separately from the main liability for tax payment, and abstractly, it is established by the occurrence of legal requirements, such as the shortage of collection to the main taxpayer, but in detail, it is finalized by the notice of payment stipulated in Article 12 of the National Tax Collection Act, and it shall be based on the secondary liability for tax payment (i.e., the due date designated by the notice of payment stipulated in Article 12 of the National Tax Collection Act) even on the issue of whether the national tax priority right stipulated in Article 35 of the Framework Act on National Taxes is recognized. Thus, as recognized by the court below, if the former office of tax payment did not issue a notice of payment on the above refining, the Plaintiff’s claim for tax payment and its due date for the above refining cannot be specifically determined, and it is not possible to recognize the national tax priority right based on the final and conclusive tax claim.
Therefore, the decision of the court below that the claim of the plaintiff's original tax claim against the non-party 1 was priority over the defendant bank's collateral is erroneous in the misapprehension of legal principles as to the abstract establishment of the secondary tax liability, specific confirmation, or the priority of national taxes stipulated in Article 35 of the Framework Act on National Taxes. Therefore, the argument that points out
3. Therefore, the part of the judgment of the court below as to the claim for gold 7,742,780 won and damages for delay shall be reversed, and this part of the case shall be remanded to the court below. The defendant's remaining appeal shall be dismissed and the costs of appeal as to the dismissal of appeal shall be assessed against the losing party. It is so decided as per Disposition by
Justices Yoon Ma-tae (Presiding Justice)