사업양수인의 제2차 납세의무에 관한 연구

Abstract

Secondary tax liability obligates those who are to be seen as fair even if they are owed to tax liability just like the original taxpayer. With the secondary tax liabilities the doctrine of substance over form is realized and the collection of national tax is guaranteed(Article 2, No. 11 of National Tax General Act). But because it is a system to extend payment responsibilities to third parties who do not have the original tax payment obligation, the safety of private transactions is endangered and third party’s property rights may be infringed. Therefore, the second tax liability system requires legal justification to place the same liabilities as the original taxpayer on the third party who is not the original taxpayer. In this article I examined interpretative and legislative issues which can be raised in relation to the second tax payment obligation borne by the business transferee. From the viewpoint of interpretation, the pertinency of business transfer which is the requirement of the second tax obligation should be judged on the functional side, and when calculating the limit amount, the negative property of the acquired business should be considered. Also, the second tax liability will be established again for the second tax liability obligation. In terms of legislative perspectives, it is necessary to narrow the time range of the national tax concerned and the relevance between the business and the national tax should be narrowed too. In addition, the target business transfer should be restricted to the transfer between related parties. Lastly, if the national tax is subjected to the multiple establishments, it is necessary to allocate the national tax among establishment. The standard of the allotment needs to be stipulated in laws and regulations.