Supreme Court-2015-Du-43599 ( October 29, 2015)

In case where the taxpayer's "place to be served" is several, it shall not be served by public notice in case where a taxpayer visits only some of them and confirms that the addressee is absent.

Even though a tax official was able to attempt to serve a taxpayer at each place because of a number of "the place to be served", it does not constitute a case where a tax official visited only a part of them and confirmed that the addressee is absent, by public notice.

Article 11 of the Framework Act on National Taxes

2015Nu64307 Global income and revocation of disposition

MaO

AA Head of the Tax Office

May 13, 2016

June 17, 2016

1. Revocation of a judgment of the first instance;

2. On April 5, 2013, the Defendant’s disposition imposing global income tax of KRW 69,679,270 on the Plaintiff for the year 2007 is invalid.

3. All costs of the lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. Details of the disposition;

A. On March 6, 2001, the Plaintiff won a successful bid price and acquired ownership on March 6, 2001, at the 200 another Seoul OCO District Court 2OOOHHE auction procedure for the land in this case (hereinafter referred to as “instant land”).

B. On the ground of the instant land, an Otel (hereinafter “Otel”) was not owned by the Plaintiff. On May 2007, the Plaintiff transferred 1/4 shares of the instant land owned by the Plaintiff to the said officetel residents, and paid KRW 582,000,000 for the transfer price, and KRW 750,000 for the use of the said land from March 6, 2001 to the transfer date (hereinafter “instant key income”). However, the Plaintiff did not file a comprehensive income tax on the said land portion.

C. On April 5, 2013, the Defendant: (a) deemed that the instant key income received by the Plaintiff constituted “other income under Article 21(1) of the Income Tax Act as the land rent that is the consideration for the creation of statutory superficies; (b) accordingly, the Defendant issued a revised and determined global income tax of 69,OO, andOOO for the Plaintiff in 2007; and (c) served the notice on May 27, 2013.

D. On November 21, 2013, the Plaintiff appealed to the Tax Tribunal, but was dismissed on March 10, 2014.

[Reasons for Recognition] Unsatisfy, Gap evidence 3-1, Gap evidence 1-3, each entry, pleading

The purport of the whole

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) The Defendant’s employee visited the Plaintiff’s domicile on May 9, 2013 and on the 12th of the same month, but served the instant tax payment notice by publication due to the Plaintiff’s absence. However, although the Defendant’s employee was not clear whether the employee in charge of the Defendant was actually visited the Plaintiff’s domicile, and the Defendant’s employee sent letters to the Plaintiff’s Handphone, the Plaintiff did not receive such letters, and the service by publication was illegal as failing to meet the requirements for service by publication.

(2) The key income of this case is not subject to income tax under the Income Tax Act, since it is the damages for illegal acts caused by the Plaintiff’s illegal possession of land owned by the Plaintiff resident of this case.

(3) Even if global income tax is imposed on the instant key income, imposing tax after the lapse of seven years from the date on which the cause of taxation occurred, is not the Plaintiff’s cause of fault, and thus, imposing additional tax is unreasonable.

3. Relevant statutes;

The entries in the attached Table-related statutes are as follows.

4. Facts of recognition.

A. On April 5, 2013, the Defendant confirmed that: (a) on April 5, 2013, the Plaintiff’s correction and determination of KRW 69,OO, andOO (hereinafter “instant disposition”); and (b) on May 8, 2013, the Plaintiff’s entry into the Republic of Korea was not the fact of departure from the Republic of Korea until April 28, 2013 after the Plaintiff entered the Republic of Korea on October 12, 2012.

B. On May 9, 2013 and May 12, 2013, the Defendant’s public official visited the Plaintiff’s residential premises, which are the Plaintiff’s address, to serve the notice of tax payment on the instant disposition (hereinafter “instant tax payment notice”). However, the Defendant’s public official visited the Plaintiff’s residential premises on May 9, 2013 and May 12, 2013, attached a notice of tax payment arrival at the house entrance to the Plaintiff’s absence. On May 13, 2013, the Defendant publicly announced the main contents of the instant tax payment notice and served by publication.

C. However, from January 31, 2006, the Plaintiff registered its business as the place of business in Seoul OOO-gu's place of business and paid the value-added tax to the Defendant. After the instant tax payment notice was served by public notice, the Defendant sent a reminder with demand payment period up to June 21, 2013 to the Plaintiff's place of business.

[Reasons for Recognition] Facts without dispute, the evidence mentioned above, each entry of Nos. 4 through 8 (including branch numbers), and the purport of the whole pleadings

5. Determination

Article 8(1) of the Framework Act on National Taxes provides that "a place to be served with documents under the Framework Act on National Taxes or other tax-related Acts (hereinafter referred to as "place of residence, residence, place of business or place of business") shall be "where a person under Article 10(4) is not at a place to be served with documents, and where a registered mail is not served but is returned due to the absence of the recipient, etc." under Article 11(1)3 of the Framework Act on National Taxes, and Article 7-2 of the Enforcement Decree of the Framework Act on National Taxes provides that "where it is deemed difficult to serve documents by the due date for payment due to the absence of the recipient, although the tax official visited the taxpayer two or more times to deliver documents," under Article

Considering the language and text of the provision, the purport of the service by public notice under Article 11 of the Framework Act on National Taxes, and the fact that allowing service by public notice until a document is not served due to a cause not attributable to a taxpayer is likely to excessively infringe the right to a trial under Article 27(1) of the Constitution, a tax authority’s “place to be served” under Article 11(1)3 of the Framework Act on National Taxes refers to a taxpayer’s address or place of business that the tax authority may know by conducting an investigation with the due care of a good manager, and a “place to be served” of the taxpayer’s place to be served may be attempted to serve by public notice at each place, even though a tax official visited only some of the places and confirmed that there is no recipient, it does not constitute a case where service by public notice can be served by public notice (see returned judgment).

Examining the above facts in light of the above legal principles, the Plaintiff’s place of business, which can be seen as the Plaintiff’s place of business confirmed by the Defendant’s taxation data, shall not be deemed to have attempted to serve the instant tax payment notice at the Plaintiff’s place of business, and immediately sent the instant tax payment notice at the Plaintiff’s place of business, and then failed to meet the requirements for service by public notice under Article 11(1)3 of the Framework Act on National Taxes and Article 7-2 subparag. 2 of the Enforcement Decree of the Framework Act on National Taxes.

6. Conclusion

Therefore, the plaintiff's claim is justified, and the judgment of the court of first instance is unfair with different conclusions, so the judgment of the court of first instance is revoked, and it is so decided as per Disposition with the confirmation that the disposition of this case is invalid.

Relevant statutes

▣ 국세기본법

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 under Article 8 shall be deemed made 14 days after the main contents of such documents are publicly announced:

3. Cases prescribed by Presidential Decree, such as where the person prescribed in Article 10 (4) fails to serve a document at a place where the document is served by registered mail but is returned because of the absence of the recipient

(2) Public announcement under paragraph (1) shall be made by posting or posting any of the following matters. In such cases, when it is made by publication via the national tax information and communications network, it shall be made in a manner of

1. National tax information and communications networks;

2. Bulletin board of tax offices or other proper place;

3. A Special Self-Governing City, a Special Self-Governing Province, and a Si/Gun/Gu (a Gu refers to an autonomous Gu);

(c) Websites, bulletin boards, or other appropriate places;

4. Official Gazette or daily newspaper.

▣ 국세기본법 시행령

Cases prescribed by Presidential Decree, such as where a service by registered mail was made pursuant to Article 11 (1) 3 of the Act but the recipient is absent, etc. means any of the following cases:

2. Where it is deemed difficult to serve a document by the due date for payment owing to the absence of the recipient, for all that a tax official visited the taxpayer two or more times to deliver the document.