Whether disposition designated and notified as the secondary taxpayer is legitimate

The disposition that the plaintiff designated and notified the plaintiff as the secondary taxpayer on the ground that the non-party corporation is dissolved and there is no property to complete the distribution of the remaining property, and that the plaintiff holds 100% of the shares issued by the non-party hotel at the same time as the person who received the remaining property.

The contents of the decision shall be the same as attached.

1. The plaintiff's main claim shall be dismissed. 2. The defendant's main claim shall be revoked on June 1, 1995 in excess of 4,969,194,720 won of corporate tax of 5,152,042,00 won against the plaintiff as of June 1, 1995, and the part exceeding 560,751,690 won of the disposition of imposition of 5,969,194,720 won of the defense tax of 583,843,540 won and the remaining conjunctive claim of 560,751,690 won of the defense tax of 583,751,690 won.

1. Details of the imposition;

2. On or before the 196th anniversary of the acquisition price of the above 30th anniversary of the acquisition price of the 2nd 7th 6th 7th 7th 7th 6th 7th 7th 7th 7th 7th 7th 7th 7th 96th 7th 96th 7th 7th 96th 96th 96th 26th 96th 96th 26th 96th 26th 96th 96th 96th 26th 96th 96th 96th 96th 96th 26th 96th 96th 26th 96th 96th 26th 96th 96th 26th 1990, the Defendant acquired the above 3th 9th 9th 16th 206th 26th 197

2. Whether the disposition is lawful;

A. The plaintiff's assertion

(1) The second tax liability refers to, when the principal taxpayer is delinquent in taxes, the disposition of arrears on the property of the principal taxpayer is insufficient to cover the amount of tax liability even if the disposition of arrears on the property of the said principal taxpayer is made, the Defendant, while making the disposition of arrears in this case, assigned the Plaintiff as the second taxpayer without making a decision or notifying it to the non-party hotel who is the principal taxpayer. The disposition in this case against the Plaintiff is null and void because the requirements for establishment thereof are not met, and even if it is not null and void as it is illegal disposition, it must be revoked.

(2) Although Article 32(4) of the Corporate Tax Act provides for the decision of correction of imposition of corporate tax under Article 32(4) of the Corporate Tax Act, since the decision of correction should be limited in terms of protecting taxpayer's trust or protecting property rights, the decision of correction should be immediately corrected in cases where omission, etc. was discovered, and if the right holder is believed not to exercise his right over a long-term period despite the opportunity to exercise his right, the other party is able to exercise his right if he is believed not to exercise his right over a long-term period, and it would result in the other party's new exercise of his right against the good faith principle. Thus, the defendant imposed corporate tax on the non-party hotel on December 16, 191, which was 1 year and six months after the plaintiff reported the corporate tax on June 26, 1990, and the plaintiff believed that all of the tax liabilities of this case were extinguished by making full payment including additional dues, etc. on December 27, 1993.

(3) According to the interpretation of Article 59-2(3) of the Corporate Tax Act, the calculation of gains on transfer, which is the tax base of special surtax, shall be based on the actual market price, not only on the basis of the actual market price, but also on the basis of the standard market price even in cases where it is unclear. ① The transfer value of the instant real estate includes not only the value of the land and buildings, but also the value of house fixtures, fixtures and part of the State property, and thus it constitutes unclear the transfer value of the instant land. ② The land acquired before January 1, 197, among the instant land, shall be calculated based on the standard market price of January 1, 197 pursuant to the Addenda of the Enforcement Decree of the Corporate Tax Act, since its market price is unclear, it shall be calculated based on the standard market price, and the corresponding transfer value shall be determined based on the standard market price. Accordingly, since the transfer value of the instant land cannot be distinguished by parcel, the transfer value of the instant land shall be determined based on the standard market price.

(4) As the essence of the penalty tax is a tax administrative fine and has a new and continuous nature similar to the penalty, the penalty tax shall not be succeeded to the Plaintiff, which is merely a secondary taxpayer who has a status similar to a guaranteed liability holder under the Civil Act.

B. Determination

(1) Determination as to a primary claim (request for nullification confirmation)

Inasmuch as there is no dispute between the parties that the Plaintiff already paid the corporate tax amount and the defense tax amount according to the instant disposition, it is apparent that the Plaintiff does not bear the duty of tax payment pursuant to the said disposition, and thus, the lawsuit of the primary claim seeking confirmation of invalidity of the said disposition cannot be said to have no benefit in litigation.

(2) Determination on the conjunctive claim (claim for Revocation)

(1) Article 38(1) of the Framework Act on National Taxes (amended by Act No. 427 of Dec. 31, 190; hereinafter the same shall apply) provides that the taxpayer shall be liable to pay taxes if the corporation is dissolved and its residual assets are less than the amount to be collected even without paying the national taxes, surcharges, or expenses for disposition on default. The second liability to pay taxes shall be imposed on the corporation. Article 39 of the same Act provides that the taxpayer shall not be liable to pay taxes if the tax base of the corporation or the remaining assets are less than the amount to be collected. The second liability to pay taxes shall be imposed on the non-party 1 for the remaining assets of the corporation for the same reasons as that of the non-party 1, because the non-party 2 stated that the non-party 9 was not entitled to pay taxes, and that the non-party 1 would not be entitled to pay taxes on the non-party 2's remaining assets after the issuance of the tax base and the notice for disposition on default. The above provision provides that the non-party 1 shall be disposed of taxes.

(C) Article 59-2(1) of the Act provides that the tax base of special surtax shall be gains from transfer arising from the transfer of a right to a building and real estate as determined by the Presidential Decree (hereinafter referred to as “land, etc.”). Paragraph (3) shall be the amount obtained by deducting the amount set forth in the following subparagraphs from the transfer value: Provided, That where the transfer value and the acquisition value are unclear, the transfer value and the amount determined by the standard market price at the time of its transfer as determined by the Presidential Decree shall be the transfer value and the acquisition value, respectively. Article 7 of the Addenda of the Enforcement Decree of the Act (amended by the Presidential Decree No. 7464 of Dec. 31, 1974; Presidential Decree No. 12565 of Dec. 31, 198) provides that the acquisition value of assets acquired before December 31, 197 shall be the book value calculated by multiplying the current market price by the 19.7.16.17.16.16.16.17.

"Where the transfer value and acquisition value are unclear" under Article 59-2 (3) of the Act includes not only cases where the transfer value and acquisition value are unclear, but also cases where only one of the two values are unclear (see Supreme Court Decision 93Nu23992, Jun. 13, 1995). In the interpretation of Article 7 of the Addenda of the Enforcement Decree of the Act, where the assets acquired before December 31, 1976 are transferred, even if the transfer value can be known, the value assessed on the basis of the current market price as of January 1, 197 for the purpose of calculating gains from transfer should be confirmed in accordance with the current market price as of January 1, 197, and where the market price as of January 1, 197 cannot be known, it shall be deemed that the transfer value and the acquisition value as of the current market price as of January 23, 197 are illegal (see Supreme Court Decision 209Nu6426, Oct. 23, 1990).

However, the transfer income amount shall be calculated by asset transfer. If the transfer income amount is to be calculated based on the actual transaction value, where several real estates are traded collectively, the actual transaction value of the whole real estate may be confirmed, but if it is impossible to divide each actual transaction value, the actual transaction value may be calculated by calculating in proportion to the standard market price by asset transfer. In such a case, where one of the actual transaction values is unclear, the assets excluding the assets can be calculated on the basis of the actual transaction value (see Supreme Court Decisions 93Nu845 delivered on September 28, 1993; 9-2(5) of the Corporate Tax Act amended by Act No. 4804 delivered on December 22, 1994; Article 124-5(3) of the Enforcement Decree of the Corporate Tax Act and Article 124-5(3) of the Enforcement Decree of the same Act provide that it shall be calculated in proportion to the standard market price of the whole land shall be without merit.

In addition, according to the statement in Gap evidence 1-7, the non-party hotel and the non-party ○ Insurance Co., Ltd. classify the land price and the building price at the time of the sale of the real estate in this case, and recognize that the land price is only divided into the planned road site and the land price of the non-party ○ Insurance Co., Ltd., and there is no evidence to deem that the price of the land in this case includes the value of the right of possession and the right of possession, etc., and in light of the circumstances that the entire real estate in this case is subject to sale as a single substitute, it was a convenience for calculating the total land price, and it cannot be deemed that it was a separate price. Accordingly, it is legitimate to divide the sale price of the land in this case by lots according to the standard market price.

(D) According to the above Articles 38 and 39 of the Framework Act on National Taxes, since additional dues can be imposed on the secondary taxpayer, the Plaintiff’s assertion that additional dues cannot be imposed on the Plaintiff is without merit.

3. Justifiable tax amount.

"The reasonable tax amount to be borne by the plaintiff shall be calculated on the basis of the standard market price (the acquisition price of the land listed in attached Form 1 shall be the standard market price of January 1, 1977) for the land and buildings listed in attached Form 1 among the real estate of this case, and on the land listed in attached Form 2, each transfer margin shall be calculated on the basis of the actual market price, and the corporate tax and defense tax shall be calculated on the basis of the actual market price, and the calculation content shall be as stated in the "amount recognized as the

Therefore, the disposition of this case made by the defendant against the plaintiff on June 1, 1995 is unlawful since the part exceeding 4,969,194,720 won of corporate tax amount of 5,152,042,00 won of 4,969,194,720 won (in the case of less than 10 won under Article 1 (1) of the C) and the part exceeding 560,751,690 won of 583,843,540 won of defense tax amount of 583,540 won is revoked. The plaintiff's lawsuit of this case is dismissed as unlawful, and all of the remaining conjunctive claims are dismissed. It is so decided as per Disposition.

January 15, 1998