Whether the transfer or acquisition of a construction business license (a single-type construction business) license under the transaction practice falls under the "transfer or acquisition of a business" under Article 41 of the Framework Act on National Taxes.

In order to obtain authorization for transfer and acquisition of construction business from the competent authority, a construction business license is prepared in external form, and a construction business transferor and transferee submit it to the application and obtain authorization, but in fact, the Plaintiff’s transfer from the non-party company of no property other than the construction business license was merely a license for the construction business (a type construction business) in accordance with the transaction practices of the transaction that separately transfers and acquires the license, if it was not a “transfer and acquisition of business” under Article 41 of the Framework Act on National Taxes.

Article 41 of the Framework Act on National Taxes, Article 22 of Enforcement Decree of the Framework Act on National Taxes

Jinwon General Facility Corporation

The Head of Seoul District Tax Office

The Defendant’s notice of payment of value-added tax of KRW 3,299,756 and its additional dues against the Plaintiff on October 31, 1980 shall be revoked.

Litigation costs shall be borne by the defendant.

The same shall apply to the order.

In full view of each of the statements in Eul evidence Nos. 1 (Resolution of Decision), Eul evidence Nos. 2 (Designation of Second Taxpayer), and Eul evidence No. 3 (Notice of Payment), for which no dispute over the establishment of each petition exists, the defendant delinquent in paying the value-added tax amounting to KRW 3,29,756 for occasional amount of 1980, which was the due date of March 7, 1980. The defendant deemed the plaintiff as the business transferee of the non-party company and recognized that the property of the non-party company cannot cover the above delinquent national tax and its additional tax amounting to KRW 329,974, pursuant to Article 41 of the Framework Act on National Taxes, Article 22 of the Enforcement Decree of the same Act, Article 12 of the National Tax Collection Act, and Article 12 of the National Tax Collection Act, and at the same time, recognized the fact that the plaintiff designated the plaintiff as the second taxpayer for the national tax in arrears and issued the disposition in this case to the plaintiff.

The Plaintiff asserted that the Plaintiff’s transfer of construction business was unlawful on the premise that the Plaintiff did not take over the business, and the Defendant’s transfer and acquisition of construction business (Evidence No. 5 and Evidence No. 4; hereinafter the same) made between the Plaintiff and the non-party company is sufficient to deem the Plaintiff to take over the business of the non-party company. Thus, the Plaintiff’s transfer and acquisition of construction business by submitting to the Plaintiff all the certificates No. 4, No. 5 (No. 5 and No. 4) without dispute over the establishment of each real estate to the non-party company’s transfer and acquisition of construction business (the same shall apply to the public notice and the transfer and acquisition contract, No. 5 and No. 4) to the non-party company’s transfer and acquisition of construction business as its sole company’s property by the date of the above transfer and acquisition of construction business (the Plaintiff’s transfer and acquisition of construction business). However, according to the construction business’s practice, the Plaintiff and the non-party company’s transfer and acquisition of construction business (the above transfer and acquisition of construction business) are recognized to the Plaintiff.

As seen above, the defendant asserts that the acquisition by the plaintiff of the above construction business license by the non-party company should be regarded as the acquisition by the non-party company itself of the business since the non-party company did not have any property other than the construction business license. However, in light of the legislative intent and contents of each provision of the Framework Act on National Taxes (Articles 38 through 41) concerning the second tax liability and the provisions of Article 41 of the same Act and Article 22 of the Enforcement Decree of the same Act, which are the grounds for imposing the second tax liability to the business transferee, the plaintiff does not comprehensively succeed to the business itself or all rights and obligations of the non-party company as well as the legal qualification of the business (construction business), and it is reasonable to interpret that the above assertion by the defendant does not constitute the "transfer and acquisition by business" as stipulated in Article 41 of the same Act.

Therefore, since the disposition of the payment notice of this case on the premise that the plaintiff is the transferee of the business of the non-party company is illegal, the plaintiff's claim seeking its revocation is justified, and the costs of lawsuit are assessed against the losing defendant.

Judges Yellowdon (Presiding Judge)