[1] The meaning of the transferee of the business under Article 24 of the former Local Tax Act

[2] Whether the transferee’s acquisition of part of the business property by winning a successful bid in the auction procedure of a voluntary auction, of all the rights and obligations for the remaining business property, goodwill, and business, by a separate transfer contract from the transferor, constitutes a comprehensive succession to the business for which the secondary tax liability becomes effective (affirmative)

[3] The case holding that in case where the plaintiff acquired the principal business asset (the first thing) of a golf course by winning a successful bid in the course of a voluntary auction, and acquired all other business facilities, goodwill, trade name, permission, etc. (the second thing) through a separate sales contract from the previous business operator, the transferee is a business transferee liable for secondary tax liability under Article 24 of the former Local Tax Act in light of the details and contents of the first and second thing and the subsequent progress, etc.

[1] Article 24 (1) of the former Local Tax Act (amended by Act No. 6060 of Dec. 28, 1999) provides that "if the property of the transferor is short of the amount to be collected with respect to the impositions of the local government imposed on the transferor as of the date of transfer and takeover of the business, the transferee of the business shall be subject to the secondary tax liability within the limit of the value of the transferred property." Paragraph (2) provides that "the transferor of the business in paragraph (1)" refers to the transferor of the business, and "the transferee" refers to the person who operates the business of the same item or a similar item at the same place as the transferor, and "the transferee" in the provision refers to the person who operates the business in the same business as the transferor, and the person who comprehensively takes over the business in the form of the organizational management unit of the physical means to the extent that he has the capacity to pay, and the change is recognized as identical to the transferor's legal status as the manager of the business in terms of social norms as well as the transferor's rights and obligations.

[2] If the transferee, with the intention to comprehensively transfer or take over the business, acquires part of the business property through a successful bid for the execution procedure corresponding to the sale of the business property in substance, and acquires all the rights and obligations related to the remaining business property, goodwill, and its business through a separate transfer contract with the transferor, etc., based on social norms, it is deemed that the transferee succeeds to the legal status as it is to the extent that it is identical to the transferor, and thus, constitutes a comprehensive succession to the business that

[3] The case holding that, in case where the principal business assets (the first goods) of a golf course is acquired by winning a successful bid in the course of a voluntary auction, and all other business facilities, goodwill, trade name, permission, etc. (the second goods) are acquired by a separate sales contract between the previous business operator and the previous business operator, it shall be deemed that the transferee comprehensively acquired all the rights and obligations concerning the previous business operator's business and then succeeded to the legal status as it is to the extent that it is identical to the transferor in light of social norms by comprehensively acquiring all the rights and obligations of the previous business operator, and therefore, it shall be deemed that the transferee is the business transferee liable for secondary tax liability under Article 24 of the former Local Tax Act (the former Local Tax Act before it was amended by Act No. 6060, Dec. 28

[1] Article 24(1) and (2) of the former Local Tax Act (amended by Act No. 6060 of Dec. 28, 199), Article 41(1) of the Framework Act on National Taxes, Article 22 of the Enforcement Decree of the Framework Act on National Taxes / [2] Article 24(1) and (2) of the former Local Tax Act (amended by Act No. 6060 of Dec. 28, 199), Article 41(1) of the Framework Act on National Taxes, Article 22 of the Enforcement Decree of the Framework Act on National Taxes / [3] Article 24(1) and (2) of the former Local Tax Act (amended by Act No. 6060 of Dec. 28, 199), Article 41(1) of the Framework Act on National Taxes, Article 22 of the Enforcement Decree of the Framework Act on National Taxes

[1] Supreme Court Decision 88Nu803 delivered on May 10, 198 (Gong1988, 965) 88Nu1653 delivered on February 14, 1989 (Gong1989, 431) Supreme Court Decision 90Nu1892 delivered on August 28, 1990 (Gong190, 2042) 94Nu8303 delivered on September 15, 1995 (Gong195Ha, 3443)

Chungcheongnam-Nam Industrial Development Co., Ltd. (Law Firm Maduk, Attorneys Kim Jong-ho et al., Counsel for the plaintiff-appellant)

Cheongnam-do (Attorney Kim Sung-woo, Counsel for the defendant-appellant)

Daejeon High Court Decision 99Nu1296 delivered on April 28, 2000

The judgment of the court below is reversed, and the case is remanded to Daejeon High Court.

1. Based on the evidence of his employment, the court below found that the plaintiff was established for the purpose of the business operation of golf clubs and related incidental business on September 20, 1996. On September 23, 200, Daejeon District Court around 95 27912, and the non-party X-gu Co., Ltd. (hereinafter referred to as "EXE") 127 parcels and its ground buildings and structures (hereinafter referred to as "the next 1 items") 41,645,100 won for 20 billion won for 10 billion won for 60 billion won for 10 billion won for 20 billion won for 10 billion won for 60 million won for 10 billion won for 10 million won for 6 years for 5 years for 6 years for 10 years for 6 years for 10 years for 6 years for 6 years for 10 years for 6 years for 2 years for 10 years for 6 years for 2 years for 6 years for 3 years for excluding 1 billion won for 2 years for 2 years for 2 years for excluding for 100000 years for EX.

Furthermore, the lower court determined that the Plaintiff’s acquisition and sale of the first goods exceeds 10 billion won compared to the second goods, on the ground that the acquisition price of the second goods exceeds 10 billion won; the sale and sale of the second goods is a condition for cancellation; the Plaintiff entered into a sales contract of the second goods with the EXE company after the Plaintiff applied for purchase of the first goods at the highest price, and the Plaintiff’s purchase of the second goods from the EXE company cannot be deemed to be unlawful on the ground that the Plaintiff purchased the second goods from the EXE company to acquire the second goods based on the fact that the Plaintiff purchased the second goods from the EXE company to acquire the second goods through the EXE as a result of the Plaintiff’s purchase of the first and second goods. In so doing, the lower court determined that the Plaintiff’s acquisition and sale of the second goods by the EXE company cannot be deemed to be unlawful on the ground that the Plaintiff acquired the second goods from the EXE company and the Plaintiff’s acquisition and sale of the second goods.

2. Article 24(1) of the Local Tax Act provides that "if the amount of money collectible by a local government to a transferor as of the date of transfer or acquisition of the business falls short of the amount to be collected as the property of the transferor, the transferee of the business shall be subject to secondary tax liability to the extent of the value of the transferred property." Paragraph (2) provides that "the transferee" means a person who transfers the business to another person at the same place as the transferor, and "the transferee" means a person who operates the same type of business or a similar type of business at the same place as that of the transferor." In this provision, "the transferee of the business" means a person who acquires an enterprise whose capacity to pay taxes is recognized as the organizational management unit of human resources and physical means to achieve the economic objective and who comprehensively takes over the same position as that of the transferor by legal act with the transferor, and it is reasonable to 90Nu803, May 10, 198; hereinafter referred to as "the transferee and the transferee of the business shall be deemed to have succeeded to all the transferor's rights and obligations under social norms 98.

However, according to the facts duly established by the court below, the plaintiff participated in the court's voluntary auction procedure and applied for the highest price purchase of first goods, which are the main business assets of X-PP company, was established from September 23, 1996 to the same golf course operation business and related incidental business as the business operated by X-PP company 3 days prior to the date of application for the highest price purchase. On September 24, 196, the following day after the conclusion of a sales contract with X-PP company to purchase all remaining business facilities and business rights, trade name rights, and permission rights, etc., the second goods, which are directly related to the operation of the golf course, was decided to acquire debts equivalent to approximately 3.1 billion won, including the Cheongnam-do Regional Power Development Fund, unpaid retirement allowances, unpaid rental fees, and fire insurance premiums, and the plaintiff acquired the first goods in the form of an agreement to invalidate the above sales contract, and then acquired the goods in the form of a uniform sale contract with the newly established company EXP as it is.

It is reasonable to view that the Plaintiff is a comprehensive succession to the legal status as it is, in light of social norms, to the extent that the Plaintiff comprehensively acquires all rights and obligations concerning the business, such as all business assets and goodwill, trade name, and license, of X-gu company, in the special facts of this case, including the details and details of the receipt of the first and second goods, and the subsequent progress thereof. As such, the Plaintiff is the business transferee liable for the second tax liability under Article 24 of the Local Tax Act.

3. Ultimately, the court below erred by failing to exhaust all necessary deliberations or by misapprehending the legal principles as to the transferee of the business, when concluding that the remaining plaintiff, whose opinion was different, could not be deemed to have acquired the business of the X-ray company through the acquisition of the articles No. 1 and 2. The argument in the grounds of appeal containing such purport is justified.

Therefore, the judgment of the court below is reversed, and the case is remanded to the Daejeon High Court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all Justices who reviewed the appeal.

Justices Shin Shin-chul (Presiding Justice)