Revocation of disposition imposing capital gains tax

The apartment security guards have received and delivered the registered mail to the residents in customary cases where the registered mail is delivered to the apartment, and if the apartment residents have not raised any objection against such delivery method, it is reasonable to view that the apartment residents have implicitly delegated the right to receive the registered mail, etc. to the security guards. Therefore, the apartment security guards fall under the day on which the notice of tax payment is received from the mail office clerk.

The contents of the judgment are the same as attachment.

Article 61 (1) of the Framework Act on National Taxes

2018Guhap63700 Revocation of Disposition of Imposing capital gains tax

AA

BB Director of the Tax Office

on October 21, 2019

on October 13, 2019

1. The instant lawsuit shall be dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

Cheong-gu Office

The Defendant’s disposition of imposition of capital gains tax of KRW 181,336,350 for the Plaintiff on February 1, 2017 shall be revoked.

1. Details of the disposition;

A. On August 16, 2016, the Defendant: (a) on February 11, 2009, the Plaintiff notified the Plaintiff of the pre-announcement of taxation of capital gains tax on the grounds that the Plaintiff did not transfer each of the above-mentioned OOOO OO OO-gun’s OO-gun’s O-1 forest size of 660 square meters; (b) 520-2 forest size of 520-2 forest size of 4,702 square meters; and (c) on August 18, 2009, OOO-gun’s OO-gun’s O-gun’s O-gun of 520-1 land size

B. On February 1, 2017, the Defendant: (a) KRW 181,336,358 of the transfer income tax reverted to the Plaintiff for the year 2009 (unfaithed reporting)

Additional tax 18,181,817 won, and additional tax 72,245,452 won were determined and notified (hereinafter referred to as "additional tax").

The disposition of this case is referred to as "disposition of this case".

C. The Plaintiff appealed and filed an appeal with the Tax Tribunal on November 28, 2017, but was dismissed on February 14, 2018.

Facts without any grounds for recognition, Gap evidence 3, Eul evidence 1, the purport of the whole pleadings, and the purport of the whole pleadings.

2. Determination as to the legitimacy of the instant lawsuit

A. The parties' assertion

1) Defendant’s defense prior to the merits

The plaintiff was dissatisfied with the disposition of this case and filed an appeal with the Tax Tribunal, but the above appeal was dismissed as it was filed with the lapse of the period. Therefore, the lawsuit of this case also includes the period of filing the appeal.

This is unlawful as it is filed in excess.

2) The plaintiff's assertion

The Plaintiff received the notice of disposition on default on or before September 10, 2017, and issued the instant disposition.

Since the office was known, the period of request and the period of filing the lawsuit did not expire.

B. Determination

1) The entry into force of an administrative disposition is the requirement that the other party to the disposition actually causes the content of the disposition.

the other party to the disposition is not required to be aware of, and shall be sufficient, and shall be

Division is served on the domicile of the other party on his resident registration, and is served on the other party to the disposition; or

In addition, if a person delegated with the authority to receive postal items receives it, the status of the other party to the disposition may be known.

and the starting point of the filing period under section 20(1) of the Administrative Litigation Act.

“The date the person becomes aware of such disposition” means a notice, public notice, or any other means;

Since it means the date on which an administrative disposition was actually known to the other party, it is notified that the other party was notified.

If it was actually known that there was an administrative disposition by recognizing such a fact;

The period of filing a lawsuit under Article 20(1) of the Court Litigation Act shall be deemed to run, and a written disposition shall be taken by the court

the other party to the disposition may be identified by social norms, such as service on the domicile of the party at his domicile;

It may be presumed that the other party to the disposition was aware of the disposition, unless there is any reflective proof.

(c)in addition, if a postal item is sent by means of registration or handling, it has been lost or reflected therein; or

Unless there is a counter-proof of special circumstances, such as transmission, was delivered to the addressee at that time.

Presumption can be presumed (see Supreme Court Decision 2016Du60577, Mar. 9, 2017).

In the apartment where special mail, such as ordinary mail, registered mail, etc., is delivered to a taxpayer, the apartment security guards have received and delivered it to the resident. Accordingly, if apartment residents, including the taxpayer, raise any objection with respect to the method of delivering ordinary mail, it is reasonable to deem that apartment security guards have implicitly delegated the right to receive registration mail, etc. to the apartment security guards. Therefore, apartment security guards are deemed to have received notice of disposition as provided by Article 61(1) of the Framework Act on National Taxes (see Supreme Court Decision 2000Du1164, Jul. 4, 200).

2) The main text of Article 18(1) of the Administrative Litigation Act provides that a revocation lawsuit may be brought without going through an administrative appeal against the disposition, and the proviso of other Acts provides that a revocation lawsuit may not be brought without going through an administrative appeal against the disposition.

Meanwhile, Article 56(2) and (3) of the Framework Act on National Taxes provides that any administrative litigation against any illegal disposition under the Framework Act on National Taxes or tax-related Acts shall be filed within 90 days from the date on which a request for evaluation or adjudgment under the Framework Act on National Taxes and a decision thereon is notified. Articles 61(1) and 68(1) of the same Act provide that any request for evaluation or adjudgment shall be filed within 90 days from the date on which the relevant disposition is known (when a notice of disposition is received, the date on which a notice of disposition is received). Therefore, an appeal seeking revocation of a disposition under the Framework Act on National Taxes or tax-related Acts shall be filed after going through a request for evaluation or adjudgment, and where such request for examination or adjudgment, which is a prior trial procedure, exceeds the period, is unlawful (see Supreme Court Decision 2013Du2429

3) Considering the following circumstances, comprehensively taking account of the evidence Nos. 2 through 5, 6-1 and 2 of evidence Nos. 6-2, and the testimony and the purport of the entire pleadings of the witnesses, the date on which the Plaintiff received the notice of the instant disposition ought to be deemed February 14, 2017, which is the date on which the security guard received the instant disposition. Thus, the petition for a trial on the instant disposition was filed after the lapse of 90 days from the date of receipt of the instant disposition, and is unlawful, since the instant lawsuit was filed without due process for a prior trial.

① On February 10, 2017, the Defendant sent the instant disposition to OO-Gu O-Gu O359-gil 20, OO-dong OOO-dong OO-dong OO-dong O-ship O-ship (O-ship O-ship) by registered mail.

② According to the certificate of delivery for tax payment, the House CC delivered the instant disposition on February 14, 2017, and the “DDD” of the said apartment (hereinafter “instant apartment”) received the said disposition at around 12:53 on that day. Since then, the details of the instant disposition were not returned to the tax office.

③ The apartment of this case managed the postal items delivered out of the absence of the occupant as follows. The Houseman entered the postal items in the registration ledger prepared in the apartment of this case and then delivered them to the security guards. The security guards shall deliver the postal items to the relevant occupant, and receive the recipient’s signature. If the occupant fails to receive the postal items within a given period, the security guards shall return and process the relevant postal items to the Houseman visiting the said tenant on the first day of the following week, and receive the signature of the source on the registration ledger. There is no reason to deem that at the time of the apartment of this case including the Plaintiff, the occupant raised an objection against the method of postal receipt.

(4) In principle, the contents that postal items shall be directly received by occupants on the apartment in the instant apartment.

the management rules are not in place.

⑤ around 2017, CCC was in charge of postal delivery of the entire apartment of this case.

CCC delivers to the apartment security guards of this case mail out of absence, and separately apartment expenses.

The name of the security guard was entered into "DD" without confirming the identity of the guard.

3. Conclusion

The instant lawsuit is unlawful and thus dismissed.