Suwon District Court-2018-Guhap67368 ( October 13, 2019)

Attorney-at-law who is a partner of a law firm falls under the secondary taxpayer of the tax liability of its affiliated law firm.

Pursuant to Article 58(1) of the Attorney-at-Law Act and Article 39(1) of the Framework Act on National Taxes, it is apparent that an attorney-at-law of a law firm constitutes a secondary person liable to pay taxes on its affiliated law firm's tax liability

Article 39 (Secondary Liability to Pay Taxes by Investor)

Revocation of revocation of designation as a person liable for secondary tax payment of Suwon High Court 2019Nu11435

○ Kim

○ Head of tax office

Suwon District Court Decision 2018Guhap67368 Decided June 13, 2019

September 18, 2019

oly 16, 201

1. The plaintiff's appeal is dismissed.

2. The costs of the lawsuit after the appeal shall be borne by each person.

The decision of the first instance court is revoked. On September 29, 2016, the defendant designated the plaintiff as the secondary taxpayer for the total amount of KRW 18,123,010 in the attached amount stated in the attached Form by ○○○ Law Firm as the secondary taxpayer and revoked the notification of payment (the plaintiff reduced its claim in the first instance trial).

1. Quotation of judgment of the first instance;

The reasoning of the judgment of this court is as follows, except for the addition to Paragraph 2 of Paragraph 2 of "the judgment on the main defense of the high-ranking defendant is the same as that of the judgment of the court of first instance." Thus, "Article 8 (2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act will be cited as it is," and "Article 5 (11) of the Civil Procedure Act will be '.' Since the non-party corporation paid all delinquent taxes, it cannot be deemed that the disposition of this case was retroactively illegal."

2. Judgment on the defendant's main defense

A. The defendant's assertion

Since the second tax liability to be borne by the Plaintiff is extinguished after the non-party corporation fully pays the delinquent tax amount, the lawsuit in this case does not have interest in the lawsuit.

B. Determination

1) The secondary liability for tax payment is established separately from the primary liability for tax payment, and becomes final and conclusive, or is premised on the existence of the primary liability for tax payment. As such, the grounds for the primary liability for tax payment, in principle, have the so-called secondary liability that may affect the secondary liability for tax payment (see, e.g., Supreme Court Decision 2006Du14926, Jan. 15, 2009).

According to the evidence No. 2, it is recognized that the non-party corporation paid all delinquent taxes related to the disposition of this case at the closing date of the argument of this case. The plaintiff's secondary tax liability was automatically extinguished by paying all delinquent taxes related to the disposition of this case by the non-party corporation.

2) However, even if the Plaintiff’s secondary tax liability extinguished, the external form of the instant disposition remains remaining, so if there is any defect in the instant disposition, the Plaintiff has a legal interest to seek the cancellation of the instant disposition in order to eliminate legal uncertainty due to the remaining external form of the instant disposition.

Furthermore, a notice of payment to a secondary taxpayer has the nature of an independent disposition (see, e.g., Supreme Court Decision 2006Du11750, Oct. 23, 2008). Even if an ex officio revocation of a disposition of imposition against a primary taxpayer, it cannot be deemed that the disposition of imposition against a secondary taxpayer was revoked as a matter of course, and thus, the secondary taxpayer has a benefit in filing a lawsuit seeking revocation of the disposition of imposition against him/her (see, e.g., Supreme Court Decision 2011Du22099, Jan. 27, 2012). In light of the fact that the secondary tax liability of the Plaintiff merely ceased to exist after the instant disposition, it cannot be deemed that there is no benefit in filing a lawsuit seeking revocation of the instant disposition.

3) The Defendant’s main defense is without merit.

3. Conclusion

The judgment of the first instance is justifiable, and the plaintiff's appeal is dismissed.