Since the merger cannot be deemed null and void, the notice of designation of joint and several tax liability due to the merger is legitimate.

The invalidity of a merger can be disputed only with the lawsuit for nullification of the merger, and since the plaintiff's merger and merger cannot be deemed null and void by the lawsuit for nullification of the merger, the notification of the designation of joint tax liability due to the merger and merger cannot be deemed null and void.

Article 25 (Joint Tax Liability)

2011Revocation of disposition of imposing value-added tax, etc.

XXLAT Co., Ltd.

The director of Busan District Office

November 25, 2011

December 16, 2011

1. The main claim of this case is dismissed.

2. The conjunctive claim of this case shall be dismissed.

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

【State Claim】

The Defendant’s notification of the designation of joint and several taxpayers for the information and communications construction work part of ○○ Communications Construction Co., Ltd. (hereinafter referred to as “○○ Communications”) to the Plaintiff on April 19, 201, and notification of the designation of joint and several taxpayers for the information and communications construction work part of 207 on April 20, 201, surcharge 37,058,970, surcharge 111,760, increased surcharge 16,00,209, corporate tax amounting to 3,289,030, surcharge 98,670, increased surcharge 1,341,640, increased surcharge 206, increased surcharge 205, 208, increased surcharge 206, 208, 360, 467, increased surcharge 205, 208, 208, 208, 306, 406, 208, 208.

【Preliminary Claim】

The defendant's notification of designation of joint and several taxpayers and the notification of payment to the plaintiff shall be revoked.

1. Details of the disposition;

A. On July 22, 2009, the Plaintiff entered into a merger agreement under which the part of information and communications construction project with ○○ Communications was divided and merged with the Plaintiff. On August 24, 2009, after obtaining approval from the temporary general meeting of shareholders on the same day, the Plaintiff filed a merger registration on August 24, 2009 (hereinafter “merger after division”). On August 28, 2009, on September 4, 2009, the Plaintiff filed a merger report under the Information and Communications Construction Business Act with the Do governor, which was accepted on September 4, 2009.

B. On April 19, 201, pursuant to Article 25(2) of the former Framework Act on National Taxes (amended by Act No. 9911, Jan. 1, 2010; hereinafter “former Framework Act on National Taxes”), the Defendant notified the Plaintiff of the designation of value-added tax, corporate tax, and additional dues (hereinafter “tax”) imposed on ○○ Communications prior to the instant merger after division and merger as joint and several taxpayers, and notified the Plaintiff to pay the said amount to the Plaintiff on April 20, 201 (hereinafter “instant disposition”).

(1) Value-added tax amounting to KRW 37,058,970, surcharge amounting to KRW 1,111,760, increased surcharge amounting to KRW 16,009,200, 200

(2) Corporate tax of 2007 KRW 3,289,030, additional tax of 98,670, increased additional tax of 1,341,640

(3) Value-added tax amounting to KRW 29,85,380, additional dues amounting to KRW 920,030, increased additional dues amounting to KRW 12,003,480, 208

(4) Value-added tax amounting to 208 KRW 25,138,700, surcharge amounting to 754,160, increased surcharge amounting to 6,851,640

(5) Value-added tax amounting to KRW 64,154,780, additional dues amounting to KRW 1,924,640, increased additional dues amounting to KRW 18,476,400, 200

(6) Value-added tax amounting to KRW 9,622,50, and increased additional tax amounting to KRW 2,078,460, 209

[Ground of recognition] Facts without dispute, Gap 1, 2, 6, 7 evidence, Eul l (including each number; hereinafter the same shall apply) and the purport of the whole pleadings

2. Relevant statutes;

Article 25 (Joint Tax Liability)

(2) Where a corporation is divided or divided and merged, the following corporations shall be jointly and severally liable to pay national taxes, surcharges, and expenses for disposition on default imposed on the divided corporation prior to the date of division or merger after division:

3. Where part of a divided corporation merges with another corporation and such another corporation survives, such another corporation.

3. Judgment as to the main claim

A. The plaintiff's assertion

For the following reasons, the instant disposition is null and void.

(1) Although ○○ Communications concealed the report of closure of the general taxable person of value-added tax before the instant merger after division, it did not transfer the shares of the Information and Communications Mutual Aid Association, and did not deliver separate balance sheets and financial statements such as the list of the property in arrears with the Korea Credit Guarantee Fund and the amount of 30 million won in Busan High Tax, but did not deliver the financial statements such as the balance sheet and the list of properties to ascertain such obligations. In the report of corporate division and merger under the Information and Communications Construction Business Act, it violated the instant merger agreement by failing to provide a false lease agreement and filing a false subcontract agreement under the Plaintiff’s name with the knowledge that the Plaintiff’s capital is less than KRW 150 million,000,000, which is the registration criteria for the information and communications construction business under the Information and Communications Technology Construction Business Act, and filed a false subcontract agreement under the Plaintiff’s name, and filed a report of corporate division and merger by unlawful means such as creating appearance that the Plaintiff’s claim for construction price is in conformity with the above registration criteria. Therefore, the instant merger after division is void.

(2) ○○ Communications issued a false tax invoice in collusion with the above company, etc., even though there was no actual supply of goods or services, as if it supplied goods or services in total 1,485,981,578 won during the second period of 2008, even though it did not constitute liability for the payment of value-added tax and corporate tax on the pertinent portion, the disposition of this case that notified the Plaintiff of the payment of value-added tax and corporate tax on the pertinent portion is material and obvious.

B. Determination

(1) In order for a taxation disposition to be null and void as a matter of course, the mere fact that there is an illegality in the disposition must be insufficient to say that the defect is an important and objective violation of laws and regulations, and in determining whether the defect is significant and obvious, it is necessary to reasonably consider the purpose, meaning, function, etc. of the laws and regulations which form the basis for the taxation in question as well as the characteristics of the specific case itself at the same time. In addition, a taxation disposition by a person who does not have any legal relations or factual relations subject to taxation should be deemed to be serious and obvious, but if there are objective circumstances that make it possible to believe that the legal relations or factual relations which are not subject to taxation are subject to taxation, if it is possible to accurately investigate the factual relations, it cannot be deemed to be apparent even if the defect is serious, and thus, it cannot be deemed that the taxation disposition by mistake of the fact subject to taxation is null and void as a matter of course (see Supreme Court Decision 200Da24986, Jul. 10, 201).

(2) However, as the merger takes effect by completing the registration of the merger, the invalidity of the merger can only be disputed by the lawsuit for nullification of the merger. Even according to the Plaintiff’s assertion, the Plaintiff completed the merger registration through the merger agreement with ○○ Communications, the merger resolution, the inaugural general meeting, etc., and on the other hand, as long as there is no evidence to deem that the above merger was invalidated by the lawsuit for nullification of the merger, the above merger cannot be deemed null and void even if there is a defect in the merger agreement, etc. (in addition, it is insufficient to recognize that there is a defect in the Plaintiff’s assertion in the merger agreement, etc. solely on the ground that all the evidence submitted by the Plaintiff and the Plaintiff are promoting criminal punishment against ○○ Communications, such as filing a complaint against the ○○ Communications, etc.). Therefore, the Plaintiff’

(3) Next, even if all the evidence submitted by the Plaintiff or the Plaintiff filed a complaint against ○ Communications on grounds of violation of the Punishment of Tax Evaders Act and the investigation is underway, it is insufficient to acknowledge that ○○ Communications prepared a false tax invoice without a real transaction as alleged by the Plaintiff, and there is no other evidence to acknowledge it otherwise. Furthermore, even if ○ Communications was later revealed in the fact that ○○ Communications prepared a false tax invoice without a real transaction due to the Plaintiff’s complaint, etc., such circumstance alone does not necessarily lead to the conclusion that the instant disposition, which was notified by the Defendant, deeming that the Plaintiff still exists a joint and several tax liability for value-added tax imposed by the Defendant upon the submission of the tax invoice by ○

(4) Therefore, the instant disposition cannot be deemed as having any defect as alleged by the Plaintiff, and even if there is such defect, it cannot be deemed as null and void because it is serious and clear. Therefore, the instant primary claim is without merit.

4. Judgment on the conjunctive claim

The defendant asserts that the preliminary claim of this case is unlawful because it did not go through legitimate pre-trial proceedings. Article 55 (1) of the Framework Act on National Taxes provides that "a person whose rights or interests have been infringed by an illegal or unjust disposition as a disposition pursuant to the Act or tax-related Acts may file a claim for revocation of such disposition." Article 56 (2) of the same Act provides that in order to seek revocation of such a disposition, a request for examination or adjudgment, etc. under the same Act must be made within 90 days from the date (the date of receipt of a notice of disposition) on which the disposition became known, and the administrative litigation filed without such legitimate pre-trial proceedings is unlawful. However, since the plaintiff stated that the plaintiff filed a request for adjudication prior to the lawsuit of this case, the preliminary claim of this case cannot be said to have gone through legitimate pre-trial proceedings. Therefore, the preliminary claim of this case is unlawful.

5. Conclusion

Thus, the plaintiff's primary claim is dismissed, and the conjunctive claim is dismissed.