Seoul High-2015-0613 (Law No. 19, 2017)

Since there is no right to cancel the contract due to the completion of the contract and the other party corporation closes the contract, there is no right to cancel the contract.

Considering that there is no fact that the termination of the contract between the plaintiff and the corporation is completed, the termination of the contract unfavorable to the corporation, the management of the plaintiff's obligation, the performance of the corporation's obligation, and the corporation's breach of contractual duty, there

Article 45-2 of the National Tax Basic Act

2017Guhap1492 Revocation of Disposition rejecting the rectification of global income tax

The AA

The Director of the Z Tax Office

May 29, 2018

July 24, 2018

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

Cheong-gu Office

The defendant's rejection disposition against the plaintiff on September 23, 2015 against the plaintiff shall be revoked.

1. Basic facts

A. On April 1, 1989, the Plaintiff registered his/her business with the trade name "AAco World" (hereinafter referred to as the "individual company of this case") and has been engaged in the manufacture and wholesale business of electromagnetic wave measuring devices and other machinery and equipment.

B. On September 3, 2009, the Plaintiff established AAAAD Co., Ltd. (hereinafter referred to as the “instant corporation”) and entered into a comprehensive transfer and acquisition agreement with the instant corporation on September 15, 2009, with the purport of transferring all rights and obligations regarding the instant individual business to the instant corporation (hereinafter referred to as the “instant agreement”).

C. On May 31, 2010, the Plaintiff reported KRW 000 to the Defendant as other income and paid KRW 000 of the global income tax for the year 2009.

D. On July 24, 2015, the Plaintiff filed a request for correction with the Defendant for refund of global income tax for the year 2009 pursuant to Article 45-2(2) of the former Framework Act on National Taxes (amended by Act No. 13552, Dec. 15, 2015; hereinafter “former Framework Act on National Taxes”) on the ground that the instant contract was terminated on June 8, 2015, based on the fact that the instant corporation did not perform its contractual terms (hereinafter “instant request for correction”).

E. On September 23, 2015, the Defendant rejected the instant claim for correction on the ground that: (a) the documents related to the cancellation of the contract, which was submitted to the Plaintiff on June 8, 2015 along with the instant claim for correction, appears to have been prepared by the Plaintiff as an individual qualification without the consent of both the major shareholder and the actual operator of the instant corporation; and (b) the Plaintiff appears to have been prepared as an individual qualification (hereinafter “instant refusal disposition”).

Facts that there is no dispute over the basis of recognition, Gap evidence 1 through 3, 5, Eul evidence 1 through 6, 13, and the purport of the whole pleadings

2. Whether the rejection disposition of this case is legitimate

A. The plaintiff's assertion

The Plaintiff agreed to settle the price for business transfer through the instant contract, i.e., the Plaintiff’s debt under the name of the Plaintiff, i.e., the method of acquiring the Plaintiff’s personal company’s debt, and the instant corporation did not appropriately accept the Plaintiff’s debt under the name of the Plaintiff, and paid the Plaintiff’s debt to be acquired by the instant corporation through the auction on the Plaintiff’s personal property, and thus, the Plaintiff has the right to rescind the instant contract. Therefore, on June 8, 2015, the instant contract was lawfully rescinded by declaring that the instant corporation would cancel the contract on the ground of the instant corporation’s default. Accordingly, the rescission of the instant contract constitutes the grounds for future rectification under Article 25-2 subparag. 2 of the former Enforcement Decree of the Framework Act on National Taxes (amended by Presidential Decree No. 27833, Feb. 7, 2017; hereinafter referred to as the “former Enforcement Decree of the Framework Act on National Taxes”) and thus, the instant rejection disposition by the Plaintiff was unlawful.

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

1) The Plaintiff, as of September 200, conducted an actual inspection on the assets, liabilities, and goodwill of the instant private company to attract investors by using the device that measure electromagnetic waves of electronic devices, etc. and the EMF protection system specialized in the operation of the instant private company. According to the assets and liabilities inspection report (Evidence 6) on the instant private company prepared by CC accounting corporation, the Plaintiff was the instant private company’s obligations as of August 31, 2009, 8.3 billion won loans to Korea Exchange Bank (hereinafter “Korea Exchange Bank”), 56 billion won + the credit guarantee amount of KRW 400 million (hereinafter “Korea Exchange Bank”), 200 million in total, 3.4 billion in loan amount of KRW 5 billion in the name of Korea Exchange Bank (hereinafter “Korea Exchange Bank”) and KRW 500 million in loan amount of KRW 500 million in the name of Korea Exchange Bank (hereinafter “Korea Apartment Bank”) and KRW 500 million in loan amount of KRW 600,000,000 in the aggregate loan amount of KRW 36000,00.

2) As seen above, the Plaintiff established the instant legal entity on September 3, 2009, as the investor side, through the Plaintiff’s inspection on the instant private company, and signed the instant contract with the representative director and the YangA as the internal director. The Plaintiff, as the representative of the instant private company, concluded the instant contract with the instant legal entity on September 15, 2009, stating that “the instant legal entity acquires all the assets, liabilities, and businesses of the instant private company by September 15, 2009.”

3) At the time of the incorporation of the instant legal entity, the Plaintiff held 7,938 shares (79.38 shares) out of the shares in the instant legal entity and 2,062 shares (20.62 shares) in AO (KT representative director), respectively. On or around 2009, the instant legal entity acquired 117,352 shares (39.20 shares) of the Plaintiff, who is an existing shareholder through paid-free capital increase (39.20 shares), and ASEAN acquired 58,80 shares (19.60 shares) of 89,243 shares (29.75 shares) and 34,597 shares (19.53%) of KRK Co., Ltd., a new shareholder (19.60 shares), who is a new shareholder, obtained 89,243 shares (29.75%) and 34,597 shares ratio (19.53 percent shares).

4) On January 8, 2010, the instant corporation acquired the Plaintiff’s obligation to secure real estate loans worth KRW 56 million out of the Plaintiff’s obligation to pay KRW 830 million to the Korea Exchange Bank. On January 21, 2010, with respect to the instant apartment land, on January 22, 2010, the instant corporation completed the registration of the change of mortgage made by the Plaintiff the debtor of the registration of the establishment of mortgage in the name of the Korea Exchange Bank on the ground of the contract takeover as of January 8, 2010 (However, the instant corporation did not assume the above obligation to the Korea Exchange Bank. However, the instant corporation used the instant personal company’s obligation, namely, the Plaintiff’s personal loan, to cover the interest accrued from managing the Plaintiff’s personal loan at the expense of KRW 1.65 billion, which was acquired from the Plaintiff’s personal loan at the expense of KRW 500 million from the business year of 2015,000,000.

5) On January 9, 2012, when the loans and liabilities acquired by the instant corporation were overdue, a voluntary auction was commenced with respect to the instant apartment on January 9, 2012 by Korea Exchange Bank. On September 27, 2012, Korea Exchange Bank was distributed KRW 540 million to Korea Exchange Bank and KRW 50 million to Korea Investment Mutual Savings Bank.

6) The instant legal entity closed its business on March 31, 2012, as the dispute between the Plaintiff and the investor arises and the management of the instant legal entity becomes worse due to difficulties in concluding the contract.

7) On June 8, 2015, the Plaintiff prepared a document to cancel the instant contract (hereinafter referred to as “documents to cancel the instant contract”) under the name of “cancellation due to the impossibility of payment of the goodwill” between the instant corporation and the instant corporation. At the time, the Plaintiff signed the instant documents to be signed as a company director and representative of the instant corporation, and then filed the instant claim for correction with the Defendant on July 24, 2015, accompanied by the instant documents to be cancelled.

Cancellation of a contract due to non-payment of the purchase of goodwill;

1. The corporation of this case and the plaintiff entered into a contract for acquisition of business rights with 1.65 billion won in value of business rights as a result of the evaluation of business rights by theCC accounting corporation on August 2009. However, the corporation of this case did not pay the price to the plaintiff because it did not properly attract investment after the incorporation of the corporation, and it is impossible to pay the price to the plaintiff even in the future because it was in a state of business closure due to its failure to operate the corporation, and thus, the contract for acquisition of business rights at first is rescinded.

2. The acquisition of the instant goodwill is also rescission of a contract, and the instant corporation retroactively terminates its obligation to pay KRW 1.65 million to the Plaintiff, and the Plaintiff is not entitled to further claim against the instant corporation.

The facts that there is no dispute over recognition basis, Gap's evidence Nos. 1 through 15, 19, 24, Eul's evidence Nos. 7 through 9, and 12 (including each number), the response of each order to submit financial transaction information to Han Bank Co., Ltd. and Korean Investment Mutual Savings Bank, the result of the response to an order to provide information on Samsung C&T director of this court, the whole purport of the arguments,

D. Determination

1) According to Article 45-2(2)5 of the former Framework Act on National Taxes and the former part of Article 25-2(2)2 of the former Enforcement Decree of the Framework Act on National Taxes, where a contract related to the effect of transaction or act, etc., which served as the basis of calculating the tax base and amount of tax, is rescinded by the exercise of the right of rescission or is rescinded due to unavoidable reasons that occurred after the formation of the relevant contract, the taxpayer may file a claim for determination or correction within 2 months from the date on which he/she becomes aware of the occurrence of such reasons. In addition, in the case of income tax, the burden of proof as to the facts of taxation shall be borne by the taxpayer, but if the facts of taxation are revealed in the course of specific litigation, the reasons such as cancellation,

2) The Plaintiff asserted that the instant corporation was able to exercise the right to cancel the contract on the ground that it failed to perform its duty under the instant contract, and that the instant contract was cancelled by declaring its intent to cancel the instant contract through the instant rescission document. However, the evidence presented by the Plaintiff alone is insufficient to acknowledge the subsequent request for correction, and there is no other evidence to acknowledge it.

3) Rather, according to the above facts and evidence as seen earlier, the Plaintiff’s right to rescind the contract of this case is unlawful, i.e., (i) the Plaintiff’s establishment of the instant legal entity with investors for the purpose of attracting investment, and (ii) the instant legal entity’s acquisition of an individual company’s assets and liabilities, and (iii) the Plaintiff’s acquisition of the instant legal entity’s liabilities under the name of the Plaintiff’s title was difficult to be determined based on the terms of the contract of this case’s 10 years, based on the premise that the Plaintiff’s acquisition of obligations under the name of the Plaintiff’s company and the instant legal entity’s acquisition of obligations under the title of the Plaintiff’s 20-year contract cannot be concluded as being based on the premise that the Plaintiff’s acquisition of obligations under the name of the Plaintiff’s company and the instant legal entity could not be deemed as being able to be able to be terminated, and thus, the Plaintiff’s acquisition of obligations under the name of the Plaintiff’s legal entity was difficult to be determined as the terms of the contract of this case’s acquisition.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so decided as per Disposition.