Where the original person liable for tax payment restores his/her financial resources after the disposition on default against the person liable for tax payment.

After receiving the property of the person liable for secondary tax payment, finding the property of the person liable for secondary tax payment is merely an circumstance after the disposition of sale, and thus, the obligation to pay value-added tax cannot be deemed reinstated.

Article 39 (Secondary Liability for Tax Payment of Contributors)

1. On May 1, 2003, Defendant ○○ Head of the Tax Office confirmed that there was no part of KRW 1,961,955,210 in the imposition disposition of KRW 8,726,10,000 against the Plaintiff (the part related to Defendant ○○ Head of the Tax Office’s claim for delivery of KRW 1,961,95,955,210 against the Plaintiff on June 4, 2005).

2. The plaintiff's conjunctive claim against the defendant in Korea is dismissed.

3. Of the costs of lawsuit, the part arising between the Plaintiff and the Defendant ○○ Head of the tax office is borne by the said Defendant, and the part arising between the Plaintiff and the Defendant Republic of Korea

1. Selectively, the revocation of the receipt on October 14, 2004 by Defendant ○○ Head of the tax office on June 2, 2005 and on December 30, 2004 by Defendant ○○ Head of the tax office on December 14, 2004 shall be revoked. In addition, the part of KRW 1,961,95,210 in the imposition disposition of KRW 8,726,10,000 against the Plaintiff on May 1, 2003 by Defendant ○ Head of the tax office on May 1, 2003 (the part relating to the claim for delivery of KRW 1,961,95,210 in which Defendant ○ Head of the tax office made against the Plaintiff on June 4, 2005) is invalid or non-existent.

2. Preliminary purport of claim

On June 4, 2005, the head of ○○ Tax Office confirmed that there was no value-added tax claim against the Plaintiff regarding the claim for delivery of KRW 1,961,955,210 against the Plaintiff.

1. Case history

A. The head of ○○ Tax Office, who did not pay the value-added tax on the second half of 2002, determined and notified the amount of value-added tax of KRW 8,726,100,000 to ○○○ on May 1, 2003.

B. The ○○○○○, a major shareholder, offered 1,367,00 shares of ○○○ Stock Company (one tenth shares of 136,700 shares, which were reduced by 1/10, hereinafter the same shall apply) and the letter of guarantee for the payment of the value-added tax as security and applied for the deferment of collection of the said value-added tax. The head of the ○○○ Tax Office deferred the collection of the said value-added tax from June 1, 2003 to January 31, 2004.

Afterward, ○○ paid KRW 4,363,050,000 of value-added tax on October 31, 2003 and value-added tax on December 26, 2003, KRW 100,000 of value-added tax on December 26, 2003, but 4,263,050,000 of value-added tax was delinquent, and part of value-added tax in 203 and 2004 was delinquent.

C. On February 10, 2004, the head of ○○ Tax Office attached claims against ○○○○○○○-dong 687-5 located in ○○○○-dong 264-8 (hereinafter “○○○○-dong 264-8”) on the ground of the delinquency in the payment of value-added tax for the year 2002 by ○○○○○○○, on February 10, 2004. The claims against ○○○○-dong 264-8 (hereinafter “○○○”) were seized, on the ground of the delinquency in the payment of value-added tax for the year 202 through 203, on May 11, 2004 (the trade name prior to the alteration is ○○○-dong ; hereinafter “instant claims for sale of assets, such as transmission facilities, etc., owned by ○○-dong 200 through 304.

D. In addition, on March 9, 2004, the head of ○○ Tax Office designated ○○, an oligopolistic shareholder of ○○, as the secondary taxpayer, and served a tax notice on the amount in arrears of ○○ Value-Added Tax on ○○○.

The head of ○○○○ Tax Office sold KRW 1,424,827,430 calculated by subtracting KRW 10,323,170 from the sales commission, etc., 1,424,430, 200, 200, 200, 201, 200, 300, 430, 430, 200, 200, 205, 200, 201, 30, 300, 200, 205, 10, 300, 200, 200, 200, 106, 106, 106-1, 30, 106, 200, 205, 204, 300, 205, 300, 205, 201, 305, 201.

E. Meanwhile, on May 10, 2004, ○○ filed an application for commencement of company reorganization procedure with the above court on June 9, 2004, but the decision was made on the commencement of company reorganization procedure from the above court on the same date, but as a result of economic feasibility investigation on ○○○, the above court decided on the abolition of company reorganization procedure with respect to ○○○○, and on October 2, 2004, the above court appointed the plaintiff as the bankruptcy trustee on the ground that ○○ was in excess of 46.73 billion won in assets, and on May 31, 2004, ○○'s assets were in excess of 7.75 billion won in assets as of ○○ as of May 31, 2004.

F. On December 10, 200, the Plaintiff, as the bankruptcy trustee of ○○○○, obtained a permit for the acquisition of assets related to the instant sales proceeds from the ○○○○○○○○ on December 28, 2004, with respect to the acquisition of assets related to the instant sales proceeds, 3,520,000 won from the above court on December 28, 2004 (3,52,000 won + 3,168,000 won + 185,005,60 won, and 3,705,005,60 won in total and 3,705,600 won in the above 200,000 won in arrears as of December 29, 2004; on December 31, 2004, the Plaintiff was 2003,000 won in arrears as of December 31, 2004, 2006.

G. On January 10, 2005, the head of the ○○○ Tax Office released the attachment of each claim against the ○○○○○○○○ Building, the old and old building, and the ○○○○○ Trust, which was seized as a part of the disposition on default of the value-added tax.

H. However, on June 2, 2005, the head of the ○○ Tax Office: (a) revoked the receipt of ○○ Housing and ○○ Land on October 14, 2004 and the sales price from December 31, 2004 (hereinafter “receiving act”); (b) filed a claim against the Plaintiff for additional 141,961,95,210 won, including additional 141,260,760 won, on the ground that ○○○’s default of value-added tax, filed a claim against the Plaintiff for the imposition of KRW 2,103,215,970,000,000,000,000 won for the second taxpayer’s property prior to the second taxpayer’s property, on the ground that the second taxpayer’s property goes against the supplementary nature of the secondary tax liability (the above imposition disposition related to the claim from the value-added tax in the year 202 May 1, 2003).

I. On August 31, 2005, the Plaintiff filed an objection with the Commissioner of the National Tax Service by asserting that the request for the delivery by the head of the National Tax Service was unlawful. On November 21, 2005, the Commissioner of the National Tax Service dismissed part of the Plaintiff’s request on the ground that the request for the delivery was not subject to appeal, and rendered a decision that the increased amount of KRW 141,260,760 imposed at the time of the request for the delivery was revoked. On February 6, 2006, the Plaintiff asserted that the revocation of the receipt of the instant case was illegal with the National Tax Tribunal, but the National Tax Tribunal dismissed it on January 10, 2007.

[Reasons for Recognition] Unsatisfy, Gap evidence Nos. 1 to 8, Gap evidence No. 9-1, 2, Gap evidence No. 12-1, 2, Gap evidence No. 14-2, Eul evidence No. 1 to 2-2, Eul evidence No. 3, 4, and the purport of the whole pleadings

2. The plaintiff's assertion

○○’s liability for the payment of value-added tax was entirely extinguished by ○○○’s shares, ○○○○’s shares, ○○○ Housing, and each purchase price of ○○ Land, which are secondary taxpayers and tax guarantors, which are offered as security, and the Plaintiff’s payment of KRW 2,272,082,790 on December 31, 2004. Therefore, the revocation of the instant payment act is unlawful or the instant disposition is null and void or nonexistent, and there is no value-added tax claim against the Plaintiff in the Republic of Korea. Therefore, the revocation of the instant payment act is primarily sought to revoke the instant revocation of the instant payment act or the invalidity or non-existence of the instant disposition, and seek confirmation of the absence of value-added tax claim against the Plaintiff in the Republic of Korea.

3. Related statutes;

It is as shown in the attached Form.

4. Determination on the primary claim against the head of ○○ Tax Office

A. Determination on this safety defense

Defendant ○○○ Tax Office’s revocation of the instant receipt act is not an administrative disposition subject to appeal litigation. Defendant ○○ Tax Office’s demand for delivery of tax payment, such as demand for distribution under the Civil Execution Act, is a peremptory notice of tax payment, and its nature is merely an act of notification, and thus, the Plaintiff’s lawsuit is unlawful.

On the other hand, as seen below, as long as the court accepted the claim for confirmation of the absence of the disposition of this case which the plaintiff sought selectively with the cancellation of the act of receipt of this case, there is no practical benefit to determine the above defense of this case, and it does not accept the above defense of this case (However, even if the plaintiff selected the confirmation of the absence of the disposition of this case among the main claims, as long as the review or the adjudication agency determined the existence of the tax obligation arising from the disposition of this case, which is the object of the disposition of this case, which is the object of the lawsuit for confirmation of the absence of the disposition of this case, the above review or the

B. Judgment on the merits

(1) The subject matter of a lawsuit seeking confirmation of the absence of a tax imposition disposition and the benefit of confirmation

The non-existence of the tax imposition disposition is confirmed as a result of the tax disposition claiming the non-existence of the non-existence of the tax obligation. In a lawsuit for confirmation, there is a dispute between the parties as to the legal relationship which is the subject of the disposition, and thereby, it is necessary and appropriate to confirm the existence of the legal relation as a judgment because of the plaintiff's right or legal status unstable and danger (see, e.g., Supreme Court en banc Decision 80Nu476, Mar. 23, 1982). As seen earlier, as long as the defendant ○○ Tax Office cancelled the receipt act of this case and requested the plaintiff to issue the amount equivalent to the tax imposition disposition of this case, there is a dispute between the plaintiff and the defendant ○ Tax Office as to the existence of the tax obligation according to the disposition of this case and the plaintiff's right or legal status is in danger or risk. Thus, the plaintiff has the interest to seek confirmation of the absence of the disposition of this case.

(2) Whether ○○○’s obligation to pay value-added tax ceases to exist

According to Article 26 subparagraph 1 of the Framework Act on National Taxes, the obligation to pay national taxes ceases to exist when payment, appropriation, or revocation of imposition. According to the facts acknowledged earlier, the obligation to pay value-added tax by ○○○ is based on the following facts: ① ○○○○’s ○○-○ shares, ○○○-dong and ○○-owned land, a secondary taxpayer and a tax guarantor, which are offered as security, are appropriated from each purchase price of ○-owned land, and ② The Plaintiff’s payment of the value-added tax amounting to KRW 2,272,082,790 as of December 31, 2004. (The release of the attachment of the claim against ○○-owned ○ building, ○○ building, and ○○○○-owned trust on January 10, 2005 is premised on the Plaintiff’s obligation to pay value-added tax is extinguished

Therefore, the plaintiff's assertion seeking confirmation of absence of the disposition of value-added tax of this case is reasonable.

(3) Determination on the assertion by Defendant ○○ Tax Office

Although the head of ○○ Tax Office had the property of ○○○, the principal taxpayer, but it is against the supplement of secondary tax liability to appropriate ○○’s delinquent value-added tax with the property of ○○○○, a secondary taxpayer and a tax payment guarantor. Therefore, he asserts to the effect that ○○’s liability for the payment of value-added tax is reinstated upon the cancellation of the instant receipt act

Article 39 of the Framework Act on National Taxes provides that the secondary liability for tax payment or the secondary liability for tax payment shall be complementary to the relationship between the principal taxpayer and the liability for tax payment. Therefore, in order to establish the secondary liability for tax payment, it requires that the amount of shortage in tax payment should be collected in order to establish the secondary liability for tax payment. However, once the main liability for tax payment is delinquent, the occurrence of shortage in tax payment does not necessarily require that the main taxpayer should execute the disposition on default in reality and cause a shortage in tax payment. However, if a disposition on default is made upon the secondary liability for tax payment, it is sufficient that there is an objective shortage in tax payment (see Supreme Court Decision 95Nu14756, Feb. 23, 1996). In addition, even if the main liability for tax payment recovers self-sufficiency after the disposition on the secondary liability for tax payment, such disposition does not affect the validity of the disposition (see Supreme Court Decision 2003Du10718, May 14, 2004).

As acknowledged earlier, Defendant ○○○○○○’s property at the time of designating ○○ as the secondary taxpayer, when Defendant ○○○○○ as the secondary taxpayer, can be acknowledged as objectively undermining the entire amount of national taxes to be collected even if it is substantially difficult for Defendant ○○○○○ to sell ○○○○○’s property at the time of designating ○○○○ as the secondary taxpayer. As such, it was difficult for Defendant ○○○○ to view the secondary taxpayer and the secondary taxpayer to pay taxes as unlawful, and thus, Defendant ○○○○○ to pay taxes as the principal taxpayer and the secondary taxpayer to pay taxes, and thus, Defendant ○○○○○ to pay taxes cannot be deemed unlawful as the secondary taxpayer and the secondary taxpayer to pay taxes. Furthermore, it is difficult for Defendant ○○○○○○ to deem that the secondary taxpayer and the secondary taxpayer cannot be deemed unlawful as the secondary taxpayer’s tax payment notice or the secondary taxpayer’s tax payment notice as unlawful.

However, as of the point of time when a claim for sale price of this case was realized after the sale of ○○’s property, the result was contrary to the supplement of secondary tax liability by the Plaintiff’s recovery of some of its financial resources. However, as seen earlier, ○○○ became final and conclusive as it did not dispute the disposition of imposition on it as the secondary taxpayer, and thus, the disposition of imposition on ○○○’s property was conducted. Defendant ○○○’s first of all, attempted to collect delinquent taxes on the ○○’s property, but it appears that the disposition of disposition on default was taken on the ○○○’s property, but it was difficult for the principal taxpayer to liquidate after the sale of ○○’s property, which is the secondary taxpayer and the tax guarantor, but it was merely a disposition on the 2 taxpayer and the tax guarantor’s property and subsequent disposition on the ○○○’s property.

It cannot be deemed that ○○○○○’s obligation to pay the value-added tax already extinguished solely on the ground that the obligation to pay the value-added tax is reinstated (the legal relationship between the Plaintiff and ○○○○ due to the disposition on default on the property of ○○○ ought to be resolved as a matter of the right to indemnity).

5. Judgment on the plaintiff's conjunctive claim against Defendant Republic of Korea

As long as the absence of the instant disposition, which the Plaintiff primarily claimed against the head of ○○ Tax Office, is recognized, the Defendant’s claim against the Republic of Korea is groundless.

6. Conclusion

Therefore, the plaintiff's claim seeking confirmation of the absence of the disposition of this case among the main claim against the defendant ○○ Tax Office is justified, and the plaintiff's conjunctive claim against the defendant ○○ Tax Office is dismissed as it is without merit. It is so decided as per Disposition.

Related Acts and subordinate statutes

Article 2 (Definitions of Framework Act on National Taxes)

The definitions of terms used in this Act shall be as follows:

12. The term “sureties” means a person who guarantees the payment of any national tax, additional dues or disposition fee for arrears by a taxpayer;

Article 26 (Extinguishment of Liability to Pay Taxes)

The liability to pay any national tax, additional dues or disposition fee for arrears shall be extinguished in the following cases:

1. When payment, appropriation, or cancellation of the imposition is made;

2. When the period in which the national tax may be assessed under Article 26-2, expires without any assessment; and

3. When an extinctive prescription of right to the collection of national tax is completed under Article 27.

Article 29 (Kinds of Security)

Security to be offered under tax-related Acts (hereinafter referred to as "security for tax payment") shall be any of the following:

1. Money;

2. National or local bonds;

3. Securities which the head of a tax office (if the head of a customs office administers any affairs related to national taxes under tax-related Acts, the head of the customs office; hereinafter

4. Tax guarantee insurance policy;

5. letter of guarantee of any guarantor deemed reliable by the head of a tax office;

6. Land; and

7. Insured and registered buildings, factory foundations, mining foundations, ships, aircraft, or construction machinery.

Article 39 (Secondary Liability to Pay Taxes by Investor)

(1) Where the property of a corporation (excluding corporations which shall list stocks on the Korea Stock Exchange) is insufficient to cover national taxes, additional dues and disposition fee for arrears that the corporation imposes on or pays, the persons falling under any of the following subparagraphs as of the date on which the liability to pay national taxes is established shall assume secondary tax liability for such shortage: Provided, That in the case of an oligopolistic stockholder under subparagraph 2, the limit of the amount calculated by multiplying the amount obtained by dividing the shortage by the total number of stocks issued (excluding non-voting stocks; hereafter the same shall apply in this Article) or total amount of investment of the corporation, by the number of stocks owned (excluding non-voting stocks) or investment amount (in the case of an oligopolistic stockholder under subparagraph 2

2. An oligopolistic stockholder who falls under any of the following items:

(a) A person who exercises a substantial right over the stocks or investment shares in excess of 51/100 of the total issued stocks or total investments of the relevant corporation;

(2) For the purpose of paragraph (1) 2, the term “major stockholder” means a person who is a relative or has other special relations with a stockholder or partner with limited liability as prescribed by the Presidential Decree, and the total amount of stocks owned or investment is 51/100 or more of the total number of stocks issued or investment amount of the juristic person

Article 56 of the National Tax Collection Act (Request for Share Distribution)

In cases falling under Article 14 (1) 1 through 6, the head of a tax office shall request the relevant government agency, public organization, enforcement court, enforcement officer, compulsory administration officer, bankruptcy trustee, or liquidator to deliver national taxes, surcharges, and expenses for disposition on default.

Article 62 (Request for Share Distribution under Adjudication of Bankruptcy)

When it is intended to request delivery to the trustee in bankruptcy pursuant to the provisions of Article 56 of the Act, it shall be as follows:

1. When the value of the attached property falls short of or is deemed insufficient to collect, he/she shall request the trustee in bankruptcy to deliver the shortage as estate claims;

2. Where the provider of the security for tax payment is declared bankrupt and intends to sell the security by public auction, he/she shall request the delivery of the security, after undergoing the procedures referred to in Article 201 of the Bankruptcy Act, to the amount deemed insufficient or insufficient to exercise the right to separation: Provided, That when the bankruptcy trustee intends to sell the security, he/she shall request the delivery of the amount to be collected.