The Plaintiff is merely an employee attorney-at-law who is not a member attorney-at-law and does not bear secondary tax liability for delinquent tax amount.

The Plaintiff is merely an employee attorney-at-law who is not a member attorney-at-law and does not bear secondary tax liability for delinquent tax amount.

Article 39 subparagraph 1 of the Framework Act on National Taxes

2016Guhap64105 Revocation of Disposition of Imposition of Corporate Tax, etc.

○ ○

Head of Ansan Tax Office

January 12, 2017

February 9, 2017

1. Of the instant lawsuit, the Defendant limited to the Plaintiff on July 28, 2015:

(a) the part seeking revocation in excess of KRW 32,858,120 among the part seeking revocation of the disposition of imposition of KRW 39,363,920 of the corporate tax of 2010;

(b) the part seeking revocation in excess of KRW 1,000,300,270 among the part seeking revocation of the disposition of imposition of KRW 1,198,359,670 of the corporate tax of 2011;

(c) the portion seeking revocation in excess of 15,500,160 won among the parts seeking revocation of the imposition of value-added tax of KRW 19,127,160 for two years 2010;

(d) The part seeking revocation of the imposition of value-added tax exceeding KRW 493,317,980, among the part seeking revocation of the imposition disposition of KRW 591,910,450, 201;

Each rejection shall be dismissed.

2. The Defendant’s disposition of imposition of KRW 32,858,120, corporate tax for the year 2010 against the Plaintiff on July 28, 2015, the imposition of KRW 1,00,300,270, and KRW 15,500,160, and KRW 493,317,980 for the year 2010 shall be revoked.

3. One-fifth of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

Cheong-gu Office

The Defendant’s disposition of imposition of KRW 39,363,920, corporate tax of KRW 1,198,359,670, corporate tax of KRW 2011, KRW 19,127,160, and KRW 591,91,450, which was imposed against the Plaintiff on July 28, 2015 by the Plaintiff is revoked.

1. Details of the disposition;

A. AA (hereinafter “instant legal entity”) is a legal entity established on September 13, 2002 for the purpose of carrying out the duties of attorney-at-law. The Plaintiff was registered as a member of the registry of the said legal entity from March 10, 2008 to August 21, 2012. B. On May 2, 2014, the Defendant: (a) imposed corporate tax of 32,858,120, corporate tax of 2011, corporate tax of 1,500,30,300, 2010, value-added tax of 19,50,160, and value-added tax of 19,50,160, and value-added tax of 501,71,717,980 on September 13, 201; (b) the Plaintiff was designated as a person liable for duty payment for each of the instant legal entities for the instant tax disposition of 2014 and 3.7.

Serials, main taxes and additional taxes (wons)

Corporate tax, 12010 32,858,1206,505,8039,363,920

Corporate tax of 1,000,300,270198,059,401,198,359,670

Value-added tax for 2 years 32010 15,500,1603,627,0019,127,160

493, 317, 98098, 592, 470591, 910,450 of value-added tax for the year 1,201

Total 1,541,976,5306,784,6701,848,761,200

C. On September 2, 2015, the Plaintiff appealed and requested for adjudication on September 2, 2015, but the Tax Tribunal rendered a decision to dismiss the Plaintiff’s claim on March 15, 2016.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 52, Eul evidence Nos. 1, 2, and 3, the purport of the whole pleadings

2. Ex officio determination on the part of each disposition of this case seeking revocation of the additional dues

We examine ex officio the validity of the part concerning the claim for revocation of additional dues in the lawsuit of this case.

On the other hand, since the additional dues or increased additional dues under Articles 21 and 22 of the National Tax Collection Act naturally arise pursuant to the law without due date for payment of national taxes, the notification of additional dues or increased additional dues cannot be deemed a disposition subject to appeal litigation (see, e.g., Supreme Court Decision 2005Da15482, Jun. 10, 2005). Of the first disposition of this case for which the Plaintiff seeks revocation, the part seeking revocation of this part is unlawful, as seen earlier, since the additional dues or increased additional dues under Articles 21 and 22 of the National Tax Collection Act are naturally generated pursuant to the law without due procedure for confirmation by the tax office (see, e.g., Supreme Court Decision 2005Da15482, Jun. 10, 2005).

Therefore, among the lawsuit in this case, the part that the defendant filed against the plaintiff on July 28, 2015 exceeding 32,858,120 won (additional dues of KRW 6,505,80), among the part that seeks the revocation of the disposition in this case, the part that exceeds KRW 1,00,300,270 (additional dues of KRW 198,059,400) from among the part that seeks the revocation of the disposition in this case, the part that exceeds KRW 15,50,160 from among the part that seeks the revocation of the disposition in this case (additional dues of KRW 3,627,00) from among the part that seeks the revocation of the disposition in this case, and the part that seeks the revocation of the disposition in this case exceeding KRW 493,317,980 from among the part that seeks the revocation of the disposition in this case is unlawful.

3. Whether the remainder of each disposition of this case is legitimate

A. The plaintiff's assertion

Since the income accrued from "the lawsuit against noise damage in the first and second aircraft" reverts to a person BB attorney, the disposition of corporate tax and value-added tax imposed on the said corporation is unlawful on the premise that the said income belongs to the said corporation. Moreover, the Plaintiff is merely an employment attorney-at-law of the pertinent corporation and is not an actual member attorney-at-law, and the Plaintiff is not an employee attorney-at-law, and there exists an illegal ground for designating the Plaintiff as the second taxpayer. Meanwhile, since the Plaintiff completed the retirement registration on August 21, 2012, each disposition of this case rendered after the lapse of two years is in violation of Article 225 (1)

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

(1) In order to impose secondary tax liability on the general partner of a corporation pursuant to Article 39 subparagraph 1 of the Framework Act on National Taxes, each partner is jointly and severally liable to pay the delinquent national tax if it is not possible to pay the delinquent national tax to the general partner of the corporation as of the date on which the liability to pay delinquent national tax is established, and only on the ground that it is registered as a general partner on the corporate registry in form (see, e.g., Supreme Court Decision 90Nu4235, Sept. 28, 1990). Article 58 (1) of the Attorney-at-Law Act provides that "Article 212 (1) of the Commercial Act provides that "if it is impossible to pay the corporate tax with the assets of an unlimited partnership company, each partner shall be jointly and severally liable to pay the corporate tax if he/she is unable to pay the corporate tax with the assets of the unlimited partnership company." This legal doctrine applies to a person registered as a member

On the other hand, in general, the burden of proof of the facts requiring taxation exists in a lawsuit seeking revocation of a tax imposition disposition. However, where it is proved that the facts alleged in light of the empirical rule in the specific litigation process, unless it proves that the person liable for tax payment is inappropriate to apply the empirical rule or that there are special circumstances to exclude the application of the empirical rule in a case, it cannot be readily concluded that a tax disposition is an unlawful disposition that fails to meet the requirements for taxation (see, e.g., Supreme Court Decision 2015Du60341, Jun. 10, 2016).

(2) In light of the above legal principles, the circumstances cited by the Defendant and the evidence alone are insufficient to acknowledge that the Plaintiff is in the status of the secondary taxpayer, and there is no other evidence to acknowledge them, in full view of the following circumstances that can be acknowledged by adding the fact-finding results to the Minister of Justice and the entire purport of the pleadings to each of the above evidence and the evidence Nos. 15, 17, 18, 19, 28 through 35, 49, 51, 53, and 54 (including each number number), and there is no other evidence to acknowledge them.

Therefore, the remainder of each of the dispositions of this case rendered on different premise is unlawful without any need to further examine the remainder.

① The Plaintiff appears to have received every month from April 22, 2008 to April 23, 2012 the amount of KRW 5,000,000 to KRW 6,000,000 from each of the accounts in the name of the instant corporation or its representative attorney-at-law from April 22, 2008 to his new bank account. From April 23, 2012, the Plaintiff reported or paid labor income tax as follows during the year 2008 to 201.

The total amount of benefits for the year to which the tax year is reverted, the amount of tax calculated;

20870,299,23175,054,2316,640,443

200964,800,0064,800,003,891,844

201064,800,0064,800,002,474,920

2011164,80,0064,800,002,696,680

Total264,69,231269,454,2315,703,887

② On February 2, 2008, CCC prepared a written confirmation stating that “DD attorney-at-law has voluntarily retired from office, and required an attorney-at-law to be in charge of litigation affairs, and on January 29, 2008, notified the Employment Site of Judicial Research and Training Institute on January 29, 2008, the Plaintiff, who applied for reporting the above notice, was employed as first patrolman on March 2008. At the time, the Plaintiff was merely an employed attorney-at-law, but was registered as a member in the form to supplement the members under the Attorney-at-Law Act. The Plaintiff did not receive money in return for the transfer and acquisition of shares, and did not participate in the operation of the corporation while employed by the pertinent corporation.”

③ The Plaintiff consistently prepared a written confirmation that “E, the attorney-at-law who worked from around September 2002 to May 2016, 2016 from around January 2006, the attorney-at-law Kim Kim Kim who worked from around October 2016, and the attorney-at-law who worked from around April 25, 2012 to around April 2013, 200, and the office chief month serving from around May 2003 to May 2012, 200, the Plaintiff received wages from the said legal entity and was subject to the direction and supervision of the attorney-at-law, a representative attorney-at-law from around May 2003, 203, and did not participate in the operation of the legal entity.”

In particular, each confirmation of the above EE and Kim Yong-soo also states that "the plaintiff does not have invested or received 60,000,000 won in the course of entering or leaving the corporation in this case, and there was no meeting of members for the modification of the articles of incorporation in the above corporation, and the representative attorney CCC decided and processed all matters in relation to the operation of the above corporation."

④ There is no other financial data such as account transfer details that the Plaintiff actually invested 60,000,000 won in and retired from the company, and there is no objective data suggesting that the Plaintiff was involved in actual operation, such as receiving profit dividends during the Plaintiff’s work as a member of the said corporation or participating in the decision-making of the said corporation.

⑤ Considering the circumstances, it is reasonable to deem that the Plaintiff was in the position of an employee of the pertinent legal entity. Moreover, even if the Plaintiff was registered as a member of the registry, it cannot be deemed that the Plaintiff was in the position of the secondary taxpayer with respect to the tax liability borne by the instant legal entity.

4. Conclusion

Therefore, among the lawsuit of this case, the part that exceeds 32,858,120 won among the part that seeks the revocation of the disposition of this case, the part that exceeds 1,00,300,270 won among the part that seeks the revocation of the disposition of this case, the part that seeks the revocation of the disposition of this case exceeding 15,50,160 won among the part that seeks the revocation of the disposition of this case, and the part that seeks the revocation of the disposition of this case exceeding 493,317,980 won among the part that seeks the revocation of the disposition of this case of this case, shall be dismissed and it is so decided as per Disposition by the assent of all participating Justices.