(영문) 서울고등법원 2016. 07. 06. 선고 2015누59244 판결

2. The Defendants designated the Plaintiff as the secondary taxpayer of the Company and the AAAA, the Company and BB, the Company andCC, and confirmed that each taxation disposition on the details of the taxation is invalid in entirety.

3. The total costs of the lawsuit shall be borne by the Defendants.

Purport of claim and appeal

Order.1)

Reasons

1. Details of the disposition;

A. On August 2, 2010, both Company and AAAAB, Company and BBB, andCC (hereinafter “instant companies”) are companies established for the purpose of retail business of women’s skackers, etc., and the Plaintiff is registered as the representative director from the time of the establishment of the instant company’s corporate register to the date of its establishment.

B. Following the investigation of the instant company, the head of Sungnam District Tax Office, the head of Ansan District Tax Office, and the head of Ansan District Tax Office became aware of the fact that the instant company did not report value-added tax, corporate tax, etc. while running a financial account under the name of the corporation unlike its establishment purpose. Based on the result of the investigation, the Plaintiff revised the purport of the instant company’s claim by modifying the details of the tax assessment in attached Table 1 in the trial at the trial, but such revision was merely a correction of the amount of the tax assessment that was originally erroneously stated in the initial mistake, and thus, it does not constitute a change in the claim for lawsuit.

Value-added tax, corporate tax, etc. was imposed.

C. As the company of this case did not pay the corporate tax imposed as above, the company of this case owned 70% (14,000 shares out of 20,000 shares of each company of this case) of the company of this case designated the plaintiff as the secondary taxpayer for the delinquent tax amount, and imposed corporate tax and value-added tax as stated in attached Form 1 according to the stock holding ratio (70%) on the plaintiff as stated in attached Table 1. The defendant ** the director of the tax office imposed the global income tax on the plaintiff as stated in attached Table 1. (The revised disposition was made in relation to each disposition of taxation, and the details of the tax disposition are reflected in all of them; hereinafter referred to as the "the disposition of this case").

[Reasons for Recognition] Facts without dispute, Gap's 1 to 7, 11, Eul's 1 to 5 (including additional numbers), the purport of the whole pleadings

2. Whether the instant disposition is null and void

A. The plaintiff's assertion

1) The Defendants served the Plaintiff with the instant disposition and served the notice of tax payment. The Defendants, despite having been aware of the Plaintiff’s address with due care as a good manager, neglected such duty of care and infringed the Plaintiff’s right to trial by serving public notice. Thus, the Defendants’ service by public notice against the Plaintiff was unlawful.

2) The Plaintiff requested a loan of KRW 20 million to a person who became aware of through the Internet car page, and there was only ten copies of the Plaintiff’s certificate of personal seal impression and resident registration certificate, and did not know that there was no operation of the instant company at all. The Defendants, upon investigating the instant company, knew that the instant company was established for the Internet illegal gambling business, not for the purpose in the corporate register, but for the Internet illegal gambling business, but for the real business of the instant company was a third party other than the Plaintiff, and thus, the instant disposition was contrary to the principle of substantial taxation, and thus, the instant disposition was contrary to the principle of substantial taxation.

3) Therefore, the instant disposition is null and void as the degree of the defect is significant and apparent.

B. Relevant statutes

Attached Form 2. The entry in the relevant statutes is as follows.

C. Determination as to the illegality of service by publication

1) Following the Plaintiff’s purport of the tax payment notice system under Article 11 of the Framework Act on National Taxes, and that service by public notice may excessively infringe on the right to a trial as provided under Article 27(1) of the Constitution. (2) The phrase “where the address or place of business cited by public notice is unclear” under Article 11(1)2 of the Framework Act on National Taxes, the phrase “10 [Attachment 1] [Attachment 2] tax payment notice by public notice by public notice [Attachment 1] 1- 2 [Attachment 1- 3] of the said tax payment notice by public notice by public notice by public notice by public notice by public notice by public notice by public notice by 1- 4]. (See [1] 1-2] of the said tax office’s first 9-1-2 (see Supreme Court Decision 98Du18701 delivered on May 11, 199]; the phrase* 19-1-2 of the first tax payment notice by public notice by public notice by public notice by public notice by public notice by private.

3) Examining the following circumstances in light of the aforementioned facts and the overall purport of the pleadings, it is reasonable to deem that service by public notice on the instant disposition was unlawful as it did not satisfy the requirements for service by public notice under Article 11(1)2 or 3 of the Framework Act on National Taxes.

① Under Article 10(1) and (2) of the Framework Act on National Taxes, a notice of tax payment shall be served by registered mail when it is served by mail. According to the National Tax Management Regulations, a notice of tax payment shall be served by registered mail when it is returned, a notice of tax payment shall be served by registered mail when it is returned, and a notice may be served by mail when it is deemed inappropriate to verify the address of the first returned notice by documents, etc. on a taxable and public account book, but the above service may be served by mail when it is impossible to confirm the address of the first returned notice. In principle, the above service may be made by local business trip, and the above service shall be made by posting "in case the recipient temporarily does not exist" at the place where the notice is served by public notice along with the original document along with evidentiary documents. (Article 15, 16, and 17 of the Regulations on the Collection of National Taxes). However, the Defendants sent the notice to the Plaintiff immediately without the delivery of the notice to the Plaintiff.

② At present, the reason for the return of a tax notice sent by registered mail cannot be confirmed. If the reason for return was not closed, the Defendants, as the Defendants, should have made efforts to visit the Plaintiff’s resident registration address and grasp the Plaintiff’s residence. Meanwhile, according to the evidence No. 8, the fact that the competent administrative agency registered the Plaintiff’s domicile ex officio on April 16, 2013 is recognized as having been registered the Plaintiff’s domicile, but this is merely a situation that was made after the notice of tax payment regarding the instant disposition was served by public notice. Furthermore, according to the evidence No. 12, the Defendants’ telephone communications with the Plaintiff was recognized as having been sent to the Plaintiff on May 23, 2011. Thus, the Defendants could have easily confirmed the Plaintiff’s domicile through telephone communications with the Plaintiff in the event that the mail was returned. Nevertheless, the Defendants immediately returned each disposition of this case sent to the Plaintiff’s resident registration address only once or twice without such efforts or measures, thereby making it difficult to deem the Defendants to constitute an address or place of business under Article 11(1(2) of Framework Act.

③ Each tax payment notice of the instant disposition was returned from 10 to 20 days prior to the due date specified in the first or second tax payment notice. The 10 to 20 days prior to the due date from the above return date appears to be sufficient period for the Defendants to identify the address where the Plaintiff can receive through visit, telephone communications, etc. Nevertheless, the Defendants immediately served a public notice on the date on which each of the above tax payment notice was returned. However, it is difficult to regard the case as falling under “where it is deemed difficult to serve a document within the due date because the documents under Article 11(1)3 of the Framework Act on National Taxes and Article 7-2 subparag. 1 of the Enforcement Decree of the Framework Act on National Taxes were served by registered mail but the recipient was confirmed to be absent. In addition, it is difficult to view that the above case constitutes “tax officials” 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 visit the taxpayer more than twice to deliver the document, but it is difficult to serve within the due date.

④ Even if the notice of tax payment sent by registered mail was returned once or twice due to the Plaintiff’s resident registration address, such circumstance alone is difficult to deem that the Plaintiff left his domicile for a long time beyond his/her temporary absence, and there is no other evidence to prove that the Defendants confirmed it.

4) As long as the service by public notice on the instant disposition is not effective due to its illegality, the instant disposition is deemed null and void (as long as the Plaintiff’s assertion on this part is recognized, no further determination is made as to the remainder of the assertion).

3. Conclusion

Therefore, the plaintiff's claim is justified, and the judgment of the court of first instance is unfair with different conclusions, so the plaintiff's appeal is accepted, and 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.