Gwangju District Court 2012Guhap2856 ( October 20, 2013)

Cho High 2012 Mine1233 (Law No. 11. 2012)

Only for the reasons that a corporation is registered as a general partner in the corporation's registry, the tax liability may not be imposed.

Although registration is made as a member of a corporation, a disposition imposing secondary tax liability is illegal because it was registered as a member of a corporation not in a position to actually participate in the operation of the corporation, but in a form that was registered as a member of the corporation.

Article 39 of the Framework Act on National Taxes [Secondary Tax Liability of Investor]

2013Nu603 Revocation of Disposition of Imposition of Value-Added Tax, etc.

PostalAA

The director of Gwangju Tax Office

Gwangju District Court Decision 2012Guhap2856 Decided February 20, 2013

September 26, 2013

November 14, 2013

1. The defendant's appeal is dismissed.

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

1. Purport of claim

The Defendant’s imposition of value-added tax, wage and salary income tax, and corporate tax against the Plaintiff shall be revoked.

2. Purport of appeal

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

1. Details of the disposition;

A. BB A. On April 3, 2008, the joint corporation of certified judicial scrivenerss (hereinafter referred to as “foreign corporation”) was established for the purpose of engaging in the affairs, etc. belonging to a certified judicial scrivener on April 3, 2008, and was dissolved on September 9, 201 due to the consent of all members.

B. The Defendant imposed wage and salary income tax, corporate tax, and value added tax on the non-party corporation in the separate sheet of imposition notification, and the non-party corporation did not pay the above wage and salary tax by the payment deadline. Accordingly, the Defendant deemed the Plaintiff, a member of the non-party corporation, as the general partner, as the secondary taxpayer on the date indicated in the above list designation column, and notified the Plaintiff to pay the Plaintiff the wage and salary income tax in the same list designation column, corporate tax, and value added tax to the Plaintiff on the date indicated in the same list notification column (hereinafter “instant disposition”).

C. The Plaintiff appealed and filed an objection on November 7, 201, but was dismissed, and on March 2, 2012, the Tax Tribunal filed an appeal with the said Tribunal, but the said appeal was also dismissed on May 11, 2012.

[Grounds for recognition] The non-satis described in Gap's 1, 3, and 4 (if available, including the number), and the whole purport of the pleading

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The plaintiff was registered as a member of the non-party corporation in the form of the establishment and maintenance of the non-party corporation upon the request of the KimCC, which was a usual friendship, and did not have invested in or participated in the management of the non-party corporation. Therefore, the plaintiff cannot be actually a member of the non-party corporation. Therefore, the second tax liability under Article 39 (1) 1 of the Framework Act on National

B. Relevant statutes

Attached Table 2 shall be as stated in the relevant statutes.

(c) Fact of recognition;

(1) On April 3, 2008, the representative certified judicial scrivener was established in KimD, and the plaintiff expressed that he accepted his appointment as a certified judicial scrivener of the non-party corporation. Accordingly, the articles of incorporation of the non-party corporation provide that KimCC shall invest OCC in each OOO personnel and labor (80%) and the plaintiff, KimD, E, and Song F in each OO personnel and labor (5% of investment shares) (Article 7), and each member shall receive dividends in proportion to the amount of fees paid to the certified judicial scrivener who performed the designated duties (Article 27(1)).

(2) In the register of the non-party legal entity, ① members were registered in the register of the non-party legal entity (i) as KimD, E, EF, KimCC and the plaintiff, and (ii) the principal office of the non-party legal entity as OO-Gu OO-dong 373-8 (4 floor), and (iii) the branch office of the non-party legal entity as OO-Gu O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O 364-1, and O-O-O-O-O-O-O-O-O-O-O-O 734, respectively. In addition, from July 21, 2006 to the location of the non-party legal entity.

(3) On August 22, 2011, the Plaintiff indicated that he/she consented to the dissolution of a corporation and appointment of a liquidator, and the non-party corporation was dissolved upon the consent of all its members on September 9, 2011.

[Grounds for Recognition] Part of the absence of dispute, Gap evidence 4, Eul evidence 2 to 8, and the purport of the whole pleadings

D. Determination

(1) Secondary tax liability of the general partner

Except as provided by this Act, Article 47(2) of the Certified Judicial Scriveners Act shall apply mutatis mutandis to the joint corporation of certified judicial scrivenerss. Article 212(1) of the Commercial Act shall apply mutatis mutandis to the joint corporation of certified judicial scrivenerss. Article 39(1)1 of the Framework Act on National Taxes provides that when each partner is unable to fully pay his/her obligations with the assets of the joint corporation, each partner shall be jointly and severally liable to pay his/her obligations. Meanwhile, in order to impose the secondary liability to the general partner of a corporation pursuant to Article 39(1)1 of the Framework Act on National Taxes, it is necessary to include the location at which the general partner can actually participate in the operation of the corporation as of the date on which the liability to pay delinquent national taxes is established, and on the form of registration as the general partner of the corporation, the liability to pay taxes shall not be imposed (see Supreme Court Decision 90Nu4235, Sept. 28, 190).

(2) Whether the Plaintiff was in a position to participate in the operation of the corporation

In light of the facts that the plaintiff accepted the non-party corporation's appointment as a member of the non-party corporation and agreed to the articles of incorporation to invest in the non-party corporation's labor, and that the plaintiff operated the non-party corporation's office under the name of the non-party corporation's corporate register at the non-party 255, the above facts are as follows; the non-party 5 through 14, and the testimony of the non-party 16 through 20, and the non-party 2 did not appear to have been recorded in the non-party corporation's office under the name of the non-party corporation's name and stated that the non-party 2 had been recorded in the non-party corporation's office under the name of the non-party corporation's name and the non-party corporation's office's non-party corporation's non-party corporation's non-party corporation's office's non-party corporation's non-party corporation's non-party corporation's non-party corporation's non-party corporation's non-party corporation's non-indicted corporation's office's non-indicted corporation's office's non-indicted corporation's incorporation.

(3) Judgment on the defendant's assertion

In this regard, the defendant, the articles of incorporation of the non-party corporation, signed and sealed the registration as a member in the corporate register, completed registration as a member in the non-party corporation's corporate register, and the non-party corporation established as a branch of the non-party corporation had been in the position to deal with the affairs as a member certified judicial scrivener at OOE 255, and to participate in the operation of the non-party corporation, regardless of his own intent, and the case where the non-party corporation was registered as a member of the non-party corporation in the form of a formal member of the non-party corporation regardless of his intention, but the whole purport of the evidences mentioned above can be considered as follows. In other words, in order to meet the requirements of the joint corporation corporation in the process of establishing the non-party corporation corporation which specializes in personal rehabilitation and personal bankruptcy, the plaintiff registered the plaintiff as a member certified judicial scrivener in the non-party corporation's corporate register, and the plaintiff did not have any reason to recognize that the non-party corporation did not have any other part of the corporation's office's corporate register after the establishment of the non-party corporation.

In addition, the defendant's assertion that the plaintiff was formally registered as a member of the non-party corporation based on his own will is against the principle of trust and good faith, and thus it is not permissible. Thus, in cases where the principle of trust and good faith is applied with respect to the substantive tax law that strongly acts on the basis of the principle of trust and good faith, the principle of private autonomy is more restrictive than the judicial principle governing the principle of private autonomy, and even if it is necessary to protect specific trust, it shall be applied only when it is recognized that the principle of trust and good faith is applied (see, e.g., Supreme Court Decision 2000Du2952, Jun. 15, 2001). In a lawsuit, the plaintiff did not make registration according to the substance in order to meet the legal requirements of the joint corporation corporation, and filed registration differently from the substance, and it is difficult for the tax authority to investigate and impose tax on the substance, and the burden of proof on the legality of the taxation, and even if the tax authority bears the burden of proof on the register itself, it cannot be viewed that the plaintiff's act of registration without trust.

(4) Sub-determination

Therefore, the instant disposition, based on the premise that the Plaintiff is a general partner of the non-party corporation, imposing secondary tax liability under Article 39(1)1 of the Framework Act on National Taxes, is unlawful as it violates the principle of substantial taxation.

3. Conclusion

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