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In a lawsuit seeking revocation of a second tax liability, the defects of the disposition of the principal taxpayer can be asserted.

The grounds for the secondary tax liability have the nature that may affect the secondary tax liability of the taxpayer, and it is reasonable to view that the secondary taxpayer can claim the defects of the disposition of imposition on the primary taxpayer in a lawsuit seeking revocation of the disposition of imposition on the secondary tax liability of him/her, regardless of whether the secondary tax liability is unlawful or not.

The contents of the decision shall be the same as attached.

1. The Defendant’s disposition of imposition of value-added tax of KRW 879,872,80 against the Plaintiff on May 26, 2008 shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

It is the same as the disposition.

1. Circumstances of the disposition;

A. On April 10, 2008, the Defendant imposed and notified value-added tax of 1,898,323,210 won for the second term of 2002, value-added tax of 7,734,973,500 won for the first term of 203, value-added tax of 1,951,708,30 won for the second term of 2003, value-added tax of 3,370,821,690 won for the first term of 204, value-added tax of 3,370,821,690 won for the first term of 204, and value-added tax of 116,190,270 won for the first term of 205 on May 1, 2008.

B. On May 26, 2008, when the company in this case failed to pay the value-added tax, the defendant designated the plaintiff as a shareholder of 45% of the shares of the company in this case as a secondary tax obligor and notified the plaintiff of Article 39 (1) 2(c) of the Framework Act on National Taxes (hereinafter referred to as the "disposition in this case") of the amount of 1,898,323,210 won in the amount of value-added tax in 2002, plus the amount of 56,949,690 won in the amount of 1,89,872,800 won in the amount of 1,898,323,210 won in the amount of 202.

[Reasons for Recognition: Evidence No. 1, Evidence No. 2-1, Evidence No. 2, Evidence No. 1, 2, l, evidence No. 4-1, 2-2, and purport of the whole pleadings]

2. Whether the instant disposition is lawful

A. The parties' assertion

(1) The Plaintiff argues that the instant company’s offering of goods based on the purchase approval can not be excluded from the subject of zero-rate tax rate under the Value-Added Tax Act on the sole ground of such defects, unless there are any circumstances to deem that it participated in the solicitation and participation in the trade of gold bullion, and that there are any defects in the purchase approval and the local letter of credit issued at the time of the trade. Even if there are family defects, the instant company cannot immediately exclude the supply of goods based on the purchase approval from the subject of zero-rate tax rate under the Value-Added Tax Act. Thus, the instant disposition against the instant company, which is the principal taxpayer, was unlawful, and the disposition of imposition against the principal taxpayer is unlawful. Furthermore, the Plaintiff does not constitute a lineal ascendant living together with the number of former citizens, who are the representative directors of the instant company, and thus, the Plaintiff does not constitute the secondary taxpayer under Article 39(1)2(c) of the Act.

(2) As to this, the defendant asserts that the defects of the disposition of imposition against the principal taxpayer are illegal grounds that are not alleged in the previous trial procedure, and thus, it cannot be asserted in the administrative litigation.

B. Determination

(1) A lawsuit seeking revocation of a taxation disposition is based on the substantive and procedural grounds for revocation of the taxation disposition, and the subject of the deliberation must be deemed to be the existence of the amount of taxation determined by the tax authority. As such, in a lawsuit seeking revocation of the taxation disposition, the individual illegal grounds for the recognition of the amount of taxation are merely the means of attack and defense claiming that the tax claim is justifiable, and thus, it does not necessarily require a prior trial procedure as to the individual unlawful grounds (see, e.g., Supreme Court Decision 85Nu817, Mar. 24, 1987). This part of the Defendant’s assertion

(2) Since the secondary tax liability is based on the premise of the existence of the main tax liability, it shall not be established beyond the scope of the main tax liability, and the reason for the secondary tax liability shall, in principle, have the so-called secondary nature that the secondary tax liability affects the secondary tax liability. Therefore, it is reasonable to deem that the secondary tax liability can assert the defect of the disposition of imposition against the main tax obligor in the lawsuit seeking revocation of the secondary tax liability against himself/herself, regardless of the confirmation of the illegality of the main tax liability (see, e.g., Supreme Court Decisions 79Nu270, Nov. 13, 1979; 2006Du14926, Jan. 15, 2009).

On the other hand, since the burden of proof of legality of taxation is imposed on the tax authority, in the case where the plaintiff is dissatisfied with the defect of the disposition of imposition against the principal taxpayer while filing a lawsuit seeking revocation of the disposition of this case, the defendant should first prove the legality of the disposition of imposition against the principal taxpayer. In the case of this case, the defendant did not submit any evidence to acknowledge the legality of the disposition of imposition of value-added tax of 202 against the principal taxpayer.

Therefore, since there is no evidence that the disposition of imposition against the principal taxpayer is lawful, the instant disposition based on the premise that the disposition of imposition against the principal taxpayer is lawful is unlawful.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified and it is decided as per Disposition by the assent of all participating Justices on the remaining arguments.