Any disposition that is made by a member of labor investment on the certified transcript of corporate register and designated as a secondary tax liability is unreasonable

Even if the Plaintiff was registered as a member of the corporate registry of the non-party corporation, the Plaintiff cannot be deemed as a secondary taxpayer of the corporation, since it was not in a position to participate in the operation of the non-party corporation as a member of the actual labor-investment association.

2012Guhap29462 Revocation of Disposition of Corporate Tax Imposition

The AA

Head of Seocho Tax Office

October 4, 2013

November 19, 2013

1. On February 27, 2012, the Defendant: (a) designated the Plaintiff as the secondary taxpayer by the law firm BB; and (b) revoked the disposition imposing the corporate tax of the law firm BB for the business year 2010 against the Plaintiff.

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

Cheong-gu Office

The same shall apply to the order.

1. Details of the disposition;

No.

Name

Amount of benefits, etc. paid (cost)

Copy of corporate register

Jinay

1

LCC

OOO

April 24, 2009, elective office, April 25, 2011

Labor-investment

2

MD

OOO

May 14, 2009, elective office, March 12, 2010

“”

3

KimE

OOO

June 23, 2009, elective office, May 3, 2010

“”

4

MaximumF

OOO

January 28, 2010

“”

5

Newway

OOO

February 25, 2010

“”

6

The AA(Plaintiff)

OOO

office on May 19, 2010, resignation February 7, 2011

“”

7

[G]

OOO

May 19, 2010, appointment on October 5, 2010

“”

8

H

OOO

The appointment of office on August 23, 201, February 7, 2011

“”

9

II

OOO

The appointment of office on August 23, 201, February 7, 2011

“”

Total

OOO

A. A. A law firm BB (hereinafter referred to as a "foreign corporation") was established on March 13, 2009, and in 2010, an OOOO (hereinafter referred to as "the salary of this case") was paid to the plaintiff and eight other (hereinafter referred to as "Plaintiff, etc.") who are members of labor investment according to the certified transcript of corporate register, as follows, and filed a report on corporate tax by appropriating it as losses.

B. On November 7, 2011, the Defendant notified the non-party corporation of the change of income amount by treating the instant benefits as dividends to the Plaintiff et al., and by treating the instant benefits as dividends to the Plaintiff et al., the Plaintiff et al. as the income earner, on the ground that the instant benefits paid to the labor-invested members, including the Plaintiff, constituted bonus by the disposal of profits pursuant to Article 43 of the Enforcement Decree of the Corporate Tax Act.

C. On February 27, 2012, the non-party corporation did not pay the above corporate tax, the Defendant, a member of the non-party corporation, designated the Plaintiff as the secondary taxpayer, and notified the non-party corporation to pay the amount in arrears (excluding additional OO members) (hereinafter “instant disposition”).

D. Seven members of the labor contribution of the non-party legal entity, including the Plaintiff, were dissatisfied with the request for a trial on March 28, 2012 to the Tax Tribunal, but the Tax Tribunal dismissed the request on May 31, 2012.

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, Eul evidence 1 and 2, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff was registered as a labor-invested member of the non-party corporation and worked as an employer-at-law in fact. Thus, the instant disposition taken on the premise that the Plaintiff constitutes the second taxpayer as a labor-invested member of the non-party corporation is unlawful.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

(1) Article 58(1) of the Attorney-at-Law Act provides that "Except as provided in this Act, the provisions pertaining to unlimited partnerships in the Commercial Act shall apply mutatis mutandis to law firms, and Article 212(1) of the Commercial Act concerning unlimited partnerships provides that "if it is impossible to fully pay the company's obligations with its assets, each partner shall be jointly and severally liable to pay the company's obligations." Meanwhile, Article 39(1)1 of the Framework Act on National Taxes requires that a general partner of a corporation shall be in a position to be able to participate in the operation of the corporation as of the date on which the liability to pay delinquent national taxes is established, and only on the ground that the company is registered as a general partner on its corporate registry (see, e.g., Supreme Court Decision 90Nu4235, Sept. 28, 190). In such a case, whether a corporation is a general partner of a corporation under Article 39(1)1 of the Framework Act on National Taxes can be proved by data, such as corporate register, etc.

(2) According to the above legal principles, even if the plaintiff was appointed as a member of the non-party corporation's labor investment in May 19, 2010, and resigned on February 7, 2011. On the other hand, the whole purport of arguments can be considered as follows: ① as a producer of broadcasting industry, the plaintiff did not intend to engage in legal and policy advice and content development as a member of the broadcasting industry; ② as a member of the non-party corporation's board of directors, the non-party corporation was employed by the non-party corporation as a member of the non-party corporation's board of directors; ② as a member of the non-party corporation's board of directors, the plaintiff did not participate in the non-party corporation's business after being appointed as a member of the non-party corporation's labor investment in May 19, 2010; ② as a member of the non-party corporation's board of directors' list, the plaintiff was not required to receive from the non-party corporation's new member of the corporation's labor corporation's board of directors after being employed by the plaintiff.

(3) Therefore, the instant disposition taken on the premise that the Plaintiff constitutes the secondary taxpayer of the non-party corporation is unlawful, and the Plaintiff’s allegation pointing this out is with merit.

3. Conclusion

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