Seoul Administrative Court 2014Guhap63886 ( September 25, 2015)

Any disposition imposing a tax after the expiration of the exclusion period shall be null and void.

Even if a notice of tax payment was served on one of the persons jointly and severally liable for tax payment, it cannot be said that such notice takes effect on other persons jointly and severally liable for tax payment.

2015Nu6298 Revocation of Disposition of Corporate Tax Imposition

Plaintiff (Appellant)

A, a corporation

Defendant (Appellant)

Samsung Head of Samsung Tax Office

May 10, 2016

June 14, 2016

1. The defendant's appeal is dismissed.

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

3. Each disposition taken by the Defendant against the Plaintiff on June 19, 2014, imposing KRW 48,095,847,880 and additional dues (including increased additional dues) 11,203,112,460 for the business year 207, shall be suspended until this judgment becomes final and conclusive.

the Gu Office's place of service and place of service

1. Purport of claim

The primary purport of the claim is to confirm that the Defendant’s imposition of corporate tax of KRW 48,095,847,880 against the Plaintiff on June 19, 2014 and additional tax of KRW 11,203,112,460 (including increased additional tax) is all void.

Preliminary Claim: The Defendant cancels each disposition of imposition of corporate tax of KRW 48,095,847,880 against the Plaintiff on June 19, 2014 and additional dues (including increased additional dues) KRW 11,203,112,460 against the Plaintiff on June 19, 201.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Details of the disposition;

The court's explanation on this part is the same as the corresponding part of the judgment of the court of first instance, and thus, this part is cited by Article 8 (2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

2. Judgment as to the main claim

A. The parties' assertion

1) Plaintiff

The instant disposition is null and void after the lapse of March 31, 2013, which was the exclusion period for imposition of corporate tax for the business year 2007 of DongbuTex. Even if the instant disposition is a collection disposition, the Defendant was null and void since the instant disposition was rendered without a separate disposition for imposition against the Plaintiff.

2) Defendant

Since the disposition of imposition on one of the joint and several tax obligors is effective for the remaining joint and several tax liability, the effect of the disposition by the Defendant on March 12, 2013 against the DongbuTex is naturally effective for the Plaintiff. Therefore, the Plaintiff’s tax liability was determined on the same day. The instant disposition was lawful because it was within the statute of limitations of the right to collect national tax, which was a collection that urged the performance of the final and conclusive joint and several tax liability.

(b) Related statutes;

The court's explanation on this part is the same as the corresponding part of the judgment of the court of first instance.

C. Determination

Since the defendant asserts that the disposition of this case is a collection disposition, it is examined whether the disposition of imposition of corporate tax on B Co., Ltd. for the business year 2007, which belongs to March 12, 2013, becomes effective.

Inasmuch as mutual solidarity relationship between persons jointly and severally liable for tax payment is not related to the performance of the established tax obligation, and it does not relate to the determination of the tax obligation itself, even if a person jointly and severally liable for tax payment is a person jointly and severally liable for tax payment, each person’s specific tax liability needs to be individually determined, and thus, a notification of disposition of imposition, which is a requirement for establishing specific tax liability, must be given to each person jointly and severally liable for tax payment. Therefore, even if a person jointly and severally liable for tax payment served a tax payment as a person jointly and severally liable for tax payment, it cannot be said that the other person has been notified of the disposition of imposition (see Supreme Court Decision 96Da3169

Furthermore, in the case of the division of a corporation, the divided corporation and the corporation incorporated through the division are strictly separate corporations, and the amount of tax should be claimed to each of the persons jointly and severally liable for tax payment at the discretion of the tax authorities. If the service of the tax payment notice to one of the persons jointly and severally liable for tax payment extends to all of them, the remaining persons liable for tax payment may lose the opportunity to object to the taxation disposition itself or be restricted depending on when the notice is given to the other persons without the notice of tax payment or when it is given to the other persons jointly and severally liable for tax payment. In addition, in the case of the division, the corporation established through the division is placed in the position of the person jointly and severally liable for tax payment for an excessive period of time and is contrary to the purport of the exclusion period system to promptly determine legal relations, and even if the National Tax Service's established rules (laws and regulations, October 1, 2009) do not have the legal effect to be established by the court or the corporation bound by the national, other persons jointly and severally liable for tax payment notice cannot be deemed effective by the division.

Therefore, the Defendant’s disposition imposing corporate tax on B for the business year 2007 on March 12, 2013 on B is invalid. Thus, the Defendant is obliged to determine the Plaintiff’s tax liability by imposing separate taxation on the Plaintiff. Thus, the instant disposition, which was merely a collection disposition for the execution of the disposition, is null and void (it is null and void after the lapse of five years of exclusion period of imposition even if the instant disposition is deemed a disposition of imposition).

3. Conclusion

If so, the plaintiff's primary claim is reasonable, and the judgment of the court of first instance with the same conclusion is just, and the defendant's appeal is dismissed as it is without merit, and the execution of the disposition of this case shall be suspended ex officio by applying Article 23 (2) and (3) of the Administrative Litigation Act until the judgment becomes final and conclusive.