기업회생절차상 과점주주의제2차 납세의무에 관한 판결의 부당성 – 대상판례: 부산고등법원 2021. 11. 17. 선고 (창원)2021누10005 판결

Abstract

Company A applied to the court for the commencement of rehabilitation procedures due to difficulties in the company's management, and in response, the court decided to commence rehabilitation procedures and approve the rehabilitation plan, and the rehabilitation procedure was completely terminated. However, Company A, as an oligopolistic shareholder of the delinquent corporation, was obligated to pay the second tax on the delinquent tax of the delinquent corporation, and the tax office designated Company A as the second taxpayer and imposed the tax disposition. In response, the target precedent recognized the tax bonds in this case as public interest bonds, which are illegal for the following reasons. Since the tax claim in this case was established before the decision to commence the rehabilitation procedure, it corresponds to the rehabilitation claim under the Debtor Rehabilitation Act. Nevertheless, the tax office has not made a payment disposition to Company a, and as a rehabilitation creditor, it is designated as the second taxpayer after the decision to terminate the rehabilitation procedure without performing the reporting procedure. The tax claim in this case was a rehabilitation claim, but Company A's rehabilitation plan was approved without the tax office exercising its rights as a rehabilitation creditor, and all tax claims in this case were extinguished, and after the rehabilitation plan was approved. In addition, after the rehabilitation procedure for Company A is completed, all creditors except the rights recognized by the rehabilitation plan are exempted, so all creditors except the rights recognized by the rehabilitation plan cannot claim claims against Company A. If only tax bonds are allowed, the purpose of the Debtor Rehabilitation Act to promote efficient rehabilitation of debtors or their businesses(Article 1) cannot be realized by adjusting the legal relationship of interested parties to debtors facing bankruptcy due to financial difficulties. Furthermore, if the possibility that tax bonds can become public interest bonds is allowed according to the adjustment of the timing of imposition by the tax office, the scope of tax bonds can be expanded. This is not appropriate because it will cause disadvantages to other rehabilitation creditors or public interest creditors. Moreover, irrationality may arise in which the scope of tax bonds that become public interest bonds is unfairly expanded due to adjustment of the timing of the imposition disposition by the tax office or negligence of the imposition disposition. Therefore, the imposition of tax bonds established before the commencement of rehabilitation procedures after approval of the rehabilitation plan is invalid because the taxation right is lost.