Treatment Industry Development Co., Ltd. (Attorney Park Ho-ho, Counsel for the plaintiff-appellant)

Head of Seocho Tax Office

April 29, 2016

Seoul Administrative Court Decision 2014Guhap75872 decided May 1, 2015

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance court shall be revoked. The defendant's imposition of comprehensive real estate holding tax belonging to the plaintiff in 2010 on June 23, 2014 by KRW 259,329,90 and special rural development tax of KRW 51,278,630 shall be revoked.

1. Quotation of the reasons for the judgment of the first instance;

This judgment is based on the reasoning of the judgment of the court of first instance, except for dismissal or addition of the following matters, and thus, it is based on Article 8(2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act.

(1) In Chapter 8, "the date on which the primary tax liability comes into existence ( June 1, 201)" shall be deemed "the date on which the primary tax liability comes into existence ( October 1, 201)".

(2) The parallel 4 to 9 of the pages 8 shall be as follows:

“2) Determination

A) Whether to grant authorization for oligopolistic shareholders of a secondary taxpayer should be determined on the basis of the date on which the primary tax liability is established (Supreme Court Decision 85Nu405 Decided December 10, 1985), and in hereinafter, whether the Plaintiff can be deemed an oligopolistic shareholder at the time when the Plaintiff was the date on which the primary tax liability is established.

B) Relevant legal principles

Article 272(4) of the Debtor Rehabilitation Act provides that Articles 237 through 240, 374(2), 439(3), 522-3, 527-5, and 529 of the Commercial Act concerning corporate division shall not apply to a corporate split-off under the Debtor Rehabilitation Act. However, Article 530-10 of the Commercial Act that does not exclude the application of Article 272(4) of the Debtor Rehabilitation Act provides that “a company established through a split-off or split-merger or a surviving company shall succeed, as stipulated in the written agreement for a split-off or split-off, to the company newly incorporated or surviving after a split-off, with the exception that the transfer is not permitted in light of its legal relationship or public law, regardless of its nature (see, e.g., Supreme Court Decisions 207Nu261475, Mar. 25, 198; 207Du21681, Apr. 21, 2012).

Meanwhile, as a matter of interpreting a division plan, what rights and obligations are succeeded to a divided company is an issue of interpretation of the division plan, an objective meaning that the divided company gives to its marking act should be reasonably interpreted. However, if the objective meaning of the division plan is not clearly revealed by the language and text of the division plan, and there is an issue of what the intent expressed in the division plan is in conflict with the interpretation, it shall be reasonably interpreted in accordance with logical and empirical rules, and the common sense of society and the common sense of transaction, by comprehensively taking into account the principles of division stated in the division plan and the content of the rights and obligations to be succeeded, the process of division and the purpose of achieving the division plan, etc. (see, e.g., Supreme Court Decisions 200Da40858, Mar. 23, 2001; 2012Da9679, Aug. 28, 2014).

However, in the case of the instant corporate split-off, the effect of such comprehensive succession takes place, as prescribed by the part relating to corporate split-off in the rehabilitation plan, which is not a split-off plan, pursuant to the same as in the case of the instant corporate split-off. Moreover, Article 280 of the Debtor Rehabilitation Act provides that “When a new company prescribed in the rehabilitation plan to succeed to the debtor’s tax liability, the new company is liable to pay the relevant

C) the facts of recognition

The purpose of the corporate division of this case is to promote the rehabilitation of the “pre-divisiond Motor Vehicle Sales” through the concentration of business capacity and the improvement of the financial structure through inducement of investments, thereby newly establishing the “pre-divisiond Motor Vehicle Sales” and the Plaintiff by dividing the parts of the automobile sales business and the construction business and separately establishing the Plaintiff. The “corporate rehabilitation company”, which is a surviving company after the division, is to achieve the business normalization based on the improved financial structure by concentrating the portion of the

(C) The instant rehabilitation plan provides the following criteria with respect to the division of liabilities.

본문내 포함된 표 - 다 음 - ㉠ 회생담보권 분할신설회사 이전 대상 자산에 담보권이 설정되어 있는 경우 그 담보물에 대한 회생담보권 인정 금액은 해당 자산이 이전되는 회사에 이전 ㉡ 회생채권 ▲ 담보신탁채무, 준담보신탁성 회사채채무, 미지급 임차료채무, 우선권 있는 임대보증금채무, 조세채무, 대우버스주식회사 상거래채무, 종업원채무, 공익채권은 분할신설회사 투자계약의 조건, 사업관련성 및 채권의 성격에 따라 각각 신설회사들 및 존속회사에 전액이전 ▲ 기타 회생채권(이의 있는 미확정채권으로서 나중에 확정되는 채권 포함)은 “실질이전비율”(‘분할신설된 대우자동차판매’ 9%, 원고 5.2%, 회생회사 85.8%)에 따라 분할하여 이전 ㉢ 회사분할에 따른 채무의 연대책임 분할신설회사들은 존속회사의 채무 중 분할신설회사들에게 이전한 채무(책임을 포함한다)만을 부담하며, 당해 분할신설회사에게 이전되지 아니하는 다른 채무에 대해 연대하여 변제할 책임을 지지 않는다. 또한 존속회사도 분할신설회사들로 이전된 채무에 대해 연대하여 변제할 책임을 지지 않는다.

With respect to the transfer of assets, the instant rehabilitation plan, among the assets of the construction business, transferred all of the real estate related to the automobile sales business and the asset related to the bus sales business, and transferred some of the assets related to the construction business to the Plaintiff. The Plaintiff agreed to be transferred a total of 48 construction business places and defect repair business places. The Plaintiff was also transferred the current account assets, inventory assets, inventory assets, current assets, and investment assets related to the business of the previous construction business area. The construction business place determined to be transferred by the Plaintiff includes the “YUFV business place” where the land owned by the consignor is located, and the instant shares are included in the investment assets to be transferred by the Plaintiff.

In the instant rehabilitation plan, there is no direct provision on the transfer or attribution of the instant tax liability.

[Ground of recognition] Facts without dispute, Gap evidence 2, Gap evidence 3-1, 2, and Gap evidence 6, the purport of the whole pleadings

D) Determination

However, the Plaintiff’s acquisition of the instant shares and become an oligopolistic shareholder of Songin-do, because the Plaintiff received the transfer of the construction business part of the construction project except for the portion related to Songin-do Development Project from the “Sales of Kuin-do Motor Vehicles” in the instant rehabilitation plan, and the instant shares were also transferred. However, as seen earlier, although, at the time of the Plaintiff’s transfer of the instant shares, the Plaintiff established the principal tax liability of Songin-doFV at the time of the transfer of the instant shares, the Plaintiff did not meet other requirements necessary for the establishment of the instant tax liability, such as the principal tax liability, but it was difficult to explicitly provide for the transfer of the instant tax liability that may occur in relation to the instant shares in the instant rehabilitation plan.

However, as acknowledged earlier, in principle, the existing rehabilitation obligations under the provisions on the division of liabilities under the instant rehabilitation plan provide that, in principle, the newly incorporated companies that are divided shall comprehensively be transferred to each party’s business portion and related assets, and the relevant liabilities are related thereto. Since the Plaintiff had already established the main tax liability at the time of the transfer of the instant shares, the instant tax liability may be deemed as having been the future obligations subject to the payment of principal tax liability, etc., and in light of the principle, circumstance, and purpose to achieve the division, etc. of the instant company’s division, it is reasonable to deem that the status of the oligopolistic shareholder of the “SUFV,” which serves as the basis for establishing the instant tax liability, was comprehensively succeeded to the Plaintiff by acquiring the instant shares in accordance with the instant rehabilitation plan.

Therefore, the Plaintiff received succession to the status of oligopolistic shareholders from the “sale of Daewoo Motor Vehicles before the split-off” on June 1, 2010 due to the instant corporate split-off, and thus, the Plaintiff constitutes an oligopolistic shareholder at the time of establishing the principal tax liability, and the Plaintiff’s aforementioned assertion on a different premise is without merit.

(3) Face 4 through 14 pages 9 shall be deleted.

(4) On pages 21, the following shall be added:

Article 280 (Succession to Tax Liabilities)

When the rehabilitation plan provides that any new company succeeds to any debtor's tax liability, the new company shall be liable to pay its taxes and the debtor's tax liability becomes extinct;

2. Conclusion

Therefore, the plaintiff's claim shall be dismissed as it is without merit, and the judgment of the court of first instance shall be just and the plaintiff's appeal shall be dismissed as it is without merit. It is so decided as per Disposition.

Judges Kim Woo (Presiding Judge)