Whether a person who takes over a construction license from a construction company under the discontinuance of business and takes over an unsatisfic construction is the business transferee (negative)

Article 41 of the Framework Act on National Taxes and Article 22 of the Enforcement Decree of the same Act comprehensively succeeds to all rights and obligations under Article 22 of the same Act shall be the person who succeeds to the legal status of the company to the same extent as the transferor by taking over not only all business facilities, but also all human rights and obligations, such as trade names, goodwill, intangible property rights, and claims and obligations in relation to their business. Therefore, the person who takes over only the construction license from the non-party construction company upon taking over only the construction license and takes over the rights and obligations to the non-party corporation to the non-party construction, employing the engineers

Article 41 of the Framework Act on National Taxes, Article 22 of Enforcement Decree of the Framework Act on National Taxes

Supreme Court Decision 80Nu228 delivered on July 28, 1981 delivered on February 24, 1970, 82Nu291 delivered on September 28, 1982

Seocho Development Co., Ltd., Counsel for the defendant-appellant

head of Sung Dong Tax Office

Seoul High Court Decision 80Gu332 delivered on March 10, 1981

The part of the judgment below against the plaintiff is reversed, and that part of the case is remanded to the Seoul High Court. The defendant's appeal is dismissed. The costs of appeal by the defendant are assessed against the defendant

1. The plaintiff's attorney's first ground of appeal is examined.

According to the reasoning of the judgment below, the court below determined that the plaintiff company's construction business license (license No. 652) and construction mutual aid association's investment share of 40,000 won for the non-party company's civil engineering and construction construction business (license No. 652) and construction mutual aid association's investment share of 70,000 won from the non-party Hongil Construction Co., Ltd. (hereinafter referred to as the non-party company), which operated the non-party Hongil Construction Co., Ltd. (hereinafter referred to as the "non-party company"), based on the produced evidence, purchased the non-party company's non-party company's right and obligation to the non-party company's integrity work while cancelling the contract on May 16, 1978 and taking over only the remaining construction license rights and duties, employed the technology parties and employed them as it constitutes a person who acquired the non-party company's comprehensive business under Article 41 of the Framework Act.

However, according to Article 41 of the Framework Act on National Taxes and Article 22 of the Enforcement Decree of the same Act, the transferee of a business refers to a person who comprehensively succeeds to all rights and obligations (except for accounts receivable and accounts payable) with respect to the business of the non-party company. Thus, the transferee shall succeed to all rights and obligations with respect to the business of the non-party company as well as its trade name, goodwill, intangible property rights, and bonds, debts, etc. related to the business of the non-party company to the extent that the transferor is identical to the transferor by taking over all rights and obligations with respect to the business of the non-party company (see Supreme Court Decision 80Nu228 delivered on July 28, 1981; Supreme Court Decision 6Nu110 delivered on February 24, 1970). Thus, the court below erred by misapprehending the legal principles of defense against the non-party company's transferee who comprehensively takes over the business of the non-party company by designating the plaintiff as the secondary taxpayer and imposing the plaintiff on the non-party company.

2. The grounds of appeal by the defendant litigation performer are examined. According to the reasoning of the judgment below, the court below acknowledged the fact that the non-party company entered the closure status of its business and decided the estimation and investigation of the tax of this case from time to time in 1978. Under Article 97 (2) of the Enforcement Decree of the Corporate Tax Act, the corporate tax is not imposed for the period of occasional assessment. Thus, the defendant added the corporate tax tax amount to the amount of KRW 567,415 in this case, and the defendant notified the plaintiff of the payment of the tax amount of KRW 45,393 in addition to the tax amount of unpaid additional tax to the tax amount of KRW 45,393 in the defense tax, as it is unlawful. In light of the records, the court below's fact-finding and judgment are acceptable, and there is no error of law by misunderstanding the legal principles as to the imposition of additional tax such as theory

3. Therefore, without examining the Plaintiff’s other grounds of appeal, the part against the Plaintiff among the judgment below is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The Defendant’s appeal is dismissed and the costs of appeal are assessed against the Defendant. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Jong-soo (Presiding Justice)