공시송달의 적법 여부[국패]
Whether service by public notice is legitimate
The requirement of service by public notice is a provision newly established in order to prevent infringement of the right to impose tax due to the impossibility of service by public notice, and it cannot be said that it goes against the Constitution of the Republic of Korea.
The contents of the decision shall be the same as attached.
1. The plaintiff's claim is dismissed. 2. The costs of lawsuit are assessed against the plaintiff.
1. Details of the disposition;
The following facts are not disputed between the parties, or may be acknowledged in each description of Gap evidence Nos. 2, 3, 4, 6, and 8-1, 2, Gap evidence No. 5, 7, and Eul evidence No. 1-1, 2, and 3, and there is no other counter-proof.
가. 원고는 ㅇㅇ시 ㅇㅇ동 ㅇㅇ번지 공장용지 647.9㎡(이하 이 사건 토지라고 한다)를 1988. 8. 5. 취득하였다가 같은 달 17.과 1990. 5. 31., 1992. 4. 28. 소외 ㅇㅇ공업 주식회사의 물상보증인으로서 ㅇㅇ은행 앞으로 채권최고액 합계 금12억 4천만 원의 각 근저당권을 설정하였는데, 이 사건 토지는 위 근저당권의 실행을 위한 경매절차에서 ㅇㅇ은행 앞으로 낙찰되어 1994. 10. 17. 등기가 이전되었다.
B. Accordingly, the defendant imposed capital gains tax on the plaintiff on January 16, 1997 on the transfer of the land of this case: ① The transfer value shall be calculated by converting the transfer value into the standard market price pursuant to Article 164(11) of the Enforcement Decree of the Income Tax Act (wholly amended by Presidential Decree No. 14467, Dec. 31, 1994; hereinafter referred to as the "former Enforcement Decree"), ② KRW 376,63,102 which is the successful bidder price pursuant to Article 164(11) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 4803, Dec. 22, 1994; hereinafter referred to as the "former Act"); ② The acquisition value shall be calculated by adding the transfer value to the total amount of capital gains tax calculated as KRW 60, 45(1)3, the former Enforcement Decree (amended by Presidential Decree No. 14967, May 1294; hereinafter referred to as the "former Enforcement Decree of the Act"), and imposing the tax rate of capital gains tax in this case.
A. The plaintiff's assertion
The defendant asserts that the disposition of this case is lawful on the grounds of the above disposition and the relevant statutes, and the plaintiff asserts that the disposition of this case is unlawful on the following grounds.
(1) When the defendant delivered the disposition of this case to the plaintiff's former address, and then served by public notice without ascertaining the present address and serving it again. This goes against Article 9 of the National Tax Collection Act and Article 11 of the new law, and the disposition of this case is nonexistent or null and void.
(2) The Constitutional Court rendered a decision that Article 60 of the former Act does not conform to the Constitution on November 30, 1995, and thus, even though Article 60 of the former Act cannot be applied, the defendant applied Article 60 of the former Act to the instant disposition, and thus, the instant disposition was unlawful.
(3) Even if the application of Article 60 of the former Act is reasonable, the acquisition value of the instant land was determined based on the conversion of the standard market price under Article 99 of the new Act and Article 164(10) of the new Enforcement Decree, but was determined based on the conversion of the standard market price under Article 164(3) of the former Enforcement Decree, and
(4) 원고는 이 사건 토지를 위 ㅇㅇ공업을 위하여 물상담보로 제공하였다가 소유권을 상실하게 되었는데 주채무자인 위 ㅇㅇ공업은 도산되어 변제할 자력이 없게 되었으므로 이 사건 토지의 양도는 유상양도가 아니고 또한 양도차익이 전혀 없다 할 것이어서 이 사건 처분은 위법하다.
(5) The instant disposition, based on the actual acquisition value of the instant land, based on the premise that the transfer marginal profit exists, is unlawful.
B. Determination on the first argument
(1) Relevant statutes
Framework Act on National Taxes (amended by Act No. 5189, Dec. 30, 1996)
Article 8 (Service of Documents)
(1) Documents prescribed by this Act or other tax-related Acts shall be served on the domicile, residence, place of business or office (hereinafter referred to as " domicile or place of business") of the title holder.
Article 10 (Service Method of Documents)
(1) Documents under Article 8 shall be served by delivery or mail.
(2) When it is intended to serve documents related to notification, demand, disposition on default, or order issued by the Government under tax-related Acts by mail, such documents shall be served by registered mail.
(3) Service of documents by delivery shall be made by delivering the documents to the persons to be served with the documents at the place of service by a public official of the administrative agency concerned: Provided, That if the persons to be served with the documents refuse it, they may be delivered at other
(4) In case of paragraphs (2) and (3), if a person to receive a document is not present at the place where the document is to be served, it may be served to his employee and other workers or a person living together with the mental capability to make reasonable judgement; and if the person to receive the document, his employee and other workers or a person living together with the mental capability to make reasonable judgement refuses the receipt of document without justifiable grounds, the document may be left at the place where the document is to be served.
(5) In serving documents under paragraphs (1) through (4), if a person to receive them relocates his domicile or business office, the documents shall be confirmed by the resident registration card, etc. and served at his relocated place.
Article 11 (Service by Public Notice)
(1) Where a person to be served with documents falls under any of the following subparagraphs, the service of documents pursuant to the provisions of Article 8 shall be deemed to have been made after the lapse of ten days from the date of public announcement of the gist of documents:
3. Cases prescribed by Presidential Decree, where no place is served by the person prescribed in Article 10 (4) and such place is returned because of the absence of the recipient, etc. by registered mail.
Article 1 (Enforcement Date) of the Addenda to this Act shall enter into force on the date of its promulgation (hereinafter referred to as "entry omitted").
Enforcement Decree of the Framework Act on National Taxes (amended by Presidential Decree No. 15189, Dec. 31, 1996)
Article 7-2 / Service by Public Notice)
"Cases prescribed by Presidential Decree" in Article 11 (1) 3 of the Act means cases falling under any of the following subparagraphs:
1. Where it is deemed difficult to serve a document by the due date for payment because the document served by registered mail was returned owing to the absence of the recipient; and
2. Where it is difficult to serve a document by the time limit for payment due to the addressee’s absence, for all that a tax official visited the taxpayer two or more times to deliver the document.
A Addenda: This Decree shall enter into force on the date of its promulgation.
(2) Determination
"갑제1, 9, 12호증, 을제1호증의 1, 을제3호증의 1 내지 4, 을제4호증의 1, 2의 각 기재와 증인 신ㅇㅇ의 증언에 변론의 전취지를 종합하면, 원고는 아버지 및 처 등 가족과 함께ㅇㅇ시 ㅇㅇ구 ㅇㅇ동 ㅇㅇ번지 ㅇㅇ아파트 ㅇ동 ㅇ호'에 주민등록을 하고 거주하다가 1996. 10. 18.같은 동 3 ㅇㅇ아파트 ㅇ동 ㅇ호'로 주민등록을 옮기고 주거지를 변경한 사실, 피고는 양도소득세결정결의를 할 때는 원고의 주소지를 구주소지인 위 ㅇㅇ아파트로 파악하고 있었으나, 그 후 이 사건 처분을 하고 나서 1997. 1. 21. 납세고지서(납부기한은 같은 달 31.)를 등기우편으로 발송함에 있어서는 원고의 신주소지인 위 ㅇㅇ아파트로 발송한 사실, 그런데 위 등기우편은 같은 달 27.경 원고의 부재 등으로 반송된 사실, 이에 피고 소속 공무원은 위 납세고지서를 납기인 같은 달 31.까지 송달하기가 어렵다고 판단하고 직접송달하고자 위 신주소지로 방문하였으나 원고를 만나지 못하여 납기를 1997. 2. 10.로 연장하여 위 납세고지서를 공시송달하고, 같은 달 31.경 그에 대한 안내문을 원고에게 보낸 사실을 인정할 수 있고, 달리 반증 없다.",위에서 인정한 것과 같이, 피고가 이 사건 처분에 따른 납세고지서를 원고에게 등기우편으로 발송하였으나 부재 등의 사유로 피고에게 반송된 이상, 이 사건 납세고지서는 국세기본법 제8조 제1항 , 제11조 제1항 제3호 , 같은법시행령 제7조의2 제1호 의 규정에 의하여 적법하게 공시송달됨으로써 원고에게 고지되었다 할 것이다.
Article 11 (1) 3 of the Framework Act on National Taxes provides that "if the recipient does not reside at a place where the service is to be made, it shall not be limited to cases where the recipient does not reside at such place." However, it shall be interpreted that the above provision does not include cases where the recipient does not reside at such place, but does not meet the requirements for service by public notice. (2) Although Article 11 (1) 3 of the Framework Act on National Taxes provides for the requirements for service by public notice does not include cases where the recipient does not return without the recipient's absence, the above provision does not include cases where the recipient's absence is returned" and other cases prescribed by Presidential Decree, and it does not include cases where the recipient's absence is returned without the recipient's absence. (3) If Article 11 (1) 3 of the Framework Act on National Taxes provides that the above provision is interpreted as being contrary to the above principles for guaranteeing property rights under Article 23 and Article 27 (2) 3 of the Constitution of the Republic of Korea, the plaintiff's assertion that the above provision should not be justified.
C. Judgment on the second argument by the plaintiff
Article 60 of the former Act provides that "The determination of the standard market price under Articles 23 (4) and 45 (1) 2 shall be governed by the Presidential Decree." The disposition of this case is "the conversion of the standard market price under the Presidential Decree based on delegation of the above provision as mentioned above." On the other hand, Article 60 of the former Act does not go against the purport of the Constitution which provides for the limitation of the no taxation without law and delegated legislation. However, even if the above provision continues to apply for a limited period of time, it is due to a mistake in the legislative form, and it does not necessarily go against the constitutional ideology, such as justice and equity, and it does not necessarily mean that the above provision is unconstitutional or unconstitutional. Thus, it does not constitute a violation of the former Act and its unconstitutionality decision of Article 9 of the former Act and its unconstitutionality decision of transfer income tax has already been implemented by the amendment of the Act and its unconstitutionality decision of all the above Acts and subordinate statutes.
C. Judgment on the third argument of the plaintiff
(1) Relevant statutes
(3) The standard market price at the time of acquisition of land acquired before this Decree enters into force shall be the price converted by the following formula:
Individual officially assessed individual land pricex (the standard amount of taxation at the time of acquisition / the standard amount of the officially assessed individual land price as of January 1, 1990, as of January 1, 1990)
(1) Article 164 of the Enforcement Decree of the Public Notice of Values and Appraisal of Lands, etc. Act shall be the value calculated by the following formula:
The officially assessed individual land price as of January 1, 1990 】 (the standard market price at the time of acquisition / the aggregate of the standard market price as of August 30, 1990 and that determined immediately before it, shall be divided by two).
Article 8(1) of the Addenda to the Enforcement Decree of the New Enforcement Decree ( December 30, 1995) (the amended provisions concerning capital gains in this Decree shall apply from the first transfer after this Decree enters into force.
Article 2 of the Addenda to the new Enforcement Decree ( December 31, 1996): the amended provisions of Article 164 shall apply to the first transfer after this Decree enters into force.
(2) Determination
As seen earlier, the instant land was transferred on July 22, 1994 prior to the enforcement of the new Enforcement Decree. Accordingly, Article 164(1) of the new Enforcement Decree does not apply under the provisions of the Addenda of the new Enforcement Decree, and therefore, the instant disposition that determined the acquisition value of the instant land as the standard market price converted by applying Article 164(3) of the previous Enforcement Decree, is lawful, and the Plaintiff’s assertion is without merit.
E. Judgment on the plaintiff's fourth argument
"구법 제4조 제3항 은양도라 함은 …그 자산이유상으로 사실상 이전되는 것을 말한다'고 규정하고 있고, 여기서 유상으로 이전되는 것이라 함은 양도자에게 경제적 이익이 발생함을 의미하며 그 대가의 지급이 현금으로 되느냐 현물로 되느냐를 구분하지 않고 경제적 이익이 있으면 된다 할 것이므로 적극적인 채권의 발생에 의한 자산의 유입뿐 아니라 채무의 소멸도 포함하는 의미라 할 것이다.",앞서 본 바와 같이 이 사건 토지는 원고가 위 ㅇㅇ공업 주식회사를 위한 물상담보로 제공하여 ㅇㅇ은행에 대하여 합계 금12억 4천만 원의 근저당권을 설정하였다가 위 근저당권의 실행을 위한 경매절차에서 이 사건 부동산이 낙찰됨으로써 양도된 것인바, 비록 위 ㅇㅇ공업이 부도로 도산하여 그에 대한 구상권행사가 불가능하다고 하더라도 원고는 그로 인하여 물상보증채무의 소멸이라는 경제적 이익을 얻었다 할 것이어서 이는 유상양도라 할 것이고, 또한 위 사유만으로는 양도차익이 없다고는 볼 수 없으므로, 원고의 위 주장은 이유 없다.
F. Determination on the Plaintiff’s fifth argument
According to the statement in Gap evidence No. 11, 1988, the plaintiff purchased price of 340,000,000,000 won for the land of this case and buildings thereon on July 15, 198, and the standard market price of the land of this case at the time of the above acquisition shall be KRW 43,150,140 (B) and the standard market price of the above ground building shall be KRW 71,925,480 (III). Based on the above standard market price, if the actual transaction price of the land of this case is calculated based on the above standard market price, the plaintiff is less than KRW 127,490,493 [127,490,493] [2] ? ? ? (2 + +) ? The above argument of the plaintiff is less than the acquisition price recognized by the defendant (=183,787,201 won).
3. Conclusion
Therefore, the disposition of this case is lawful, and the plaintiff's claim of this case seeking its revocation is dismissed as it is without merit, and it is so decided as per Disposition.
October 30, 1998