Seoul Administrative Court 201Guhap37923 (04.06)

National Tax Service Review Income 2011-0089 (Law No. 19, 2011)

Even if the agreement was secured at the time of the preparation of the agreement, the other income shall be deemed to have occurred on the date of actual payment.

Even if the Plaintiff received a transfer of the claim for the return of the lease deposit as security at the time of the preparation of the written agreement, when considering that the date of payment was set on September 30, 2005, the transfer of the claim shall be construed as securing payment. As such, the transfer of the claim shall be deemed to have occurred on September 30, 2005, which the Plaintiff actually received.

2012Nu1282. Detailed global income and revocation of disposition

XX

The Director of the Pacific District Office

Seoul Administrative Court Decision 2011Guhap37923 decided April 6, 2012

October 31, 2012

December 5, 2012

1. Revocation of a judgment of the first instance;

2. The plaintiff's claim is dismissed.

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

1. Purport of claim

The disposition of imposition of global income tax of 000 won for the year 2005 against the Plaintiff on May 27, 2011 is revoked.

2. Purport of appeal

The same shall apply to the order.

1. Details of the disposition;

A. On September 25, 1975, the Plaintiff purchased from the KimA, Gangdong-gu Seoul Metropolitan Government 46-14 large 59.3 square meters (hereinafter “instant site”) and held the title trust with the headB.

B. On June 28, 2003, the headB and the PCC sold the instant land to Korea on June 28, 2003, and the Plaintiff filed a complaint against the headB and thisCC.

C. The headB and thisCC demanded the Plaintiff to revoke the complaint. On December 8, 2004, the Plaintiff drafted the following agreements (hereinafter “instant agreements”) on the condition that the Plaintiff would receive KRW 000 in return for the revocation of complaint with the headB, thisCC and thisCC on the same day, and received KRW 000 on the same day, and the remainder KRW 00 was paid on September 30, 2005. On the same day, theCC transferred to the Plaintiff the right to return the lease deposit with the following contents.

1. A (the plaintiff, hereinafter the same shall apply) shall fully withdraw complaints filed against B (BB; hereinafter the same shall apply) and a disease (CC; hereinafter the same shall apply);

2. The term "B" shall be paid 00 won to A;

3. Of the above amounts, 000 won shall be paid in cash simultaneously with the withdrawal of a complaint, and the remainder shall be paid not later than September 30, 2005.

4. As security for the above amount payable to KRW 000, the term “disease” shall immediately transfer to “A” his claim for the refund of the lease deposit under a lease agreement with his head of Seocho-gu Seoul Metropolitan City XXdong apartment 8 203 Dong 203.

D. The Defendant deemed KRW 000 that the Plaintiff received on September 30, 2005 as other income and decided to correct the global income tax of KRW 000 in May 27, 201 (hereinafter “instant disposition”).

E. On June 23, 2011, the Plaintiff filed a request for review with the National Tax Service on the instant disposition, but the said request was dismissed on August 19, 201.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 4, Eul evidence No. 1 and 2, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The Plaintiff was granted a grace period of KRW 000 by September 30, 2005, taking into account the financial situation of the 2000 won, and the Plaintiff drafted the instant agreement as security for the claim for the refund of the lease deposit by the CC. As such, the acceptance of the agreed amount ought to be deemed to have been terminated on December 8, 2004. Accordingly, the instant disposition was unlawful for the lapse of the exclusion period.

2) In addition, the Defendant did not lawfully deliver the instant disposition to the Plaintiff. Therefore, the instant disposition cannot be deemed to have become effective and illegal.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Determination on the first argument

Article 21 (1) 17 of the Income Tax Act (amended by Act No. 7579 of Jul. 13, 2005; hereinafter the same) provides a honorarium as other income, and Article 50 (1) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 19327 of Feb. 9, 2006; hereinafter the same) provides that the time of receipt of other income shall be "the date of receipt of the other income", and it shall be deemed "the date of actual receipt".

In light of the circumstances established on September 30, 2005, even if the Plaintiff received the claim for the return of the lease deposit from thisCC at the time of the enactment of the instant agreement, it is reasonable to interpret that the transfer of the claim is not substituted for the payment of KRW 000 and the payment of KRW 000. Therefore, it shall be deemed that the Plaintiff actually received KRW 00 as of September 30, 2005, and the expiration date of the exclusion period of imposition of global income tax would be May 31, 201. The Plaintiff’s allegation in this part is without merit.

2) The facts of recognition as to the second argument

(1) On May 27, 2011, the Defendant printed out the written notice of the instant disposition, and received the said notice from both E and E (E) on May 30, 2011. Around that time, the Plaintiff told that both E and E certified tax accountants should pay taxes, and received the receipt from both E and E (E).

(2) The Defendant, around 11:00 on May 31, 201, sent the instant disposition notice to the Plaintiff and telephone conversations with the Plaintiff on May 31, 201, and around 15:15 on the same day, did not receive a receipt from the Plaintiff that he received the said notice from the Plaintiff.

(3) Around 20:40 on May 31, 201, 201, the Defendant FF, who is a tax official of the Defendant’s side, was accompanied by both EE Tax Accountants and the Plaintiff’s domicile (Seoul Songpa-gu, 89G apartment 305 Dong 206 dong 206) around the 1st apartment floor. At the time, this FF confirmed that the Plaintiff’s domicile and TV were used at the living room, etc. of the Plaintiff’s domicile, and then requested the EE Tax Accountants to have a telephone conversation with the Plaintiff for a smooth delivery of the notice. The Plaintiff and the EE Tax Accountants, who made a telephone conversation, heard the statement to the effect that the Plaintiff would return the tax official from the Plaintiff, and delivered it to the FF. immediately thereafter, the Plaintiff’s living room, etc. at the Plaintiff’s domicile were

(4) The FF sought a notice of the instant disposition to the Plaintiff at the address of the Plaintiff on the second floor after hearing the horses of the E certified tax accountant, but the FF attempted to deliver the notice to the Plaintiff. However, the F sent the notice to the Plaintiff in the gap of the flusium so that the flusium is unfolded and the first race is divided into several times, without giving answers.

[Reasons for Recognition] Facts without dispute, Eul's evidence 2-1, 2, Eul's evidence 3, testimony of E-E for witnesses of the first instance trial and the second instance trial, the purport of the whole pleadings

B) Determination

Article 9 of the National Tax Collection Act (amended by Act No. 10527, Apr. 4, 201) provides that when the head of a tax office, the head of a tax office, or the head of a Gun intends to collect a national tax, he/she shall issue a written notice specifying the taxable year, tax item, amount of and basis for calculation of the national tax, tax payment period and place for payment to the taxpayer. Article 83 of the Income Tax Act provides that when the head of a district tax office or the head of a regional tax office having jurisdiction over the place of tax payment determines or correctss the tax base and amount of tax to the resident under Article 80, he/she shall notify the resident or his/her heir thereof in writing as prescribed by the Presidential Decree. This provision provides that the relevant taxpayer shall be notified of the details of the disposition without the consent of the person to the disposition without the consent of the head of the competent tax office or the head of a regional tax office, and shall be strictly applied to the person who refuses to serve the document to the taxpayer at the same time and without any justifiable reason (see, e.g., Supreme Court Decision 97Nus.

In light of the above legal principles, whether the notice of disposition in this case was lawfully delivered to the Plaintiff. First of all, there is no evidence to deem that both EE certified tax accountant received the notice of disposition in this case from the Plaintiff or the power of attorney regarding tax management, and thus, the Defendant cannot be deemed to have effective only by delivering the above notice to E certified tax accountant. However, in light of the aforementioned facts and evidence revealed, it is reasonable to view that the Defendant satisfied the requirements for delivery of custody under Article 10(4) of the Framework Act on National Taxes in relation to the delivery of the notice of disposition in this case. The reasons are as follows.

① The Plaintiff was well aware that the contents and exclusion period of the instant disposition were imminent with respect to the instant disposition through the Yang E Tax Accountants, which had been entrusted with tax agent services for several years. However, on May 30, 201, the notice of the instant disposition was sent to EE tax officials on the following day before the exclusion period expires, and it appears that the Plaintiff was sufficiently aware of the developments leading up to the instant disposition and the issue of delivery of the notice, such as making it difficult for them to deliver the notice to the Plaintiff on May 31, 201, and that the said notice was sent to the Plaintiff at the time when the Plaintiff was sent to the said E tax official’s address, and that it was difficult for them to find out the credibility of the Plaintiff’s testimony at the time when the Plaintiff was sent to the Plaintiff’s address, and that it was difficult for them to view that the Plaintiff’s testimony was sent to the Plaintiff at the time when the Plaintiff was sent to the said E tax official’s address for 2 years after the expiration of exclusion period, and that the Plaintiff’s testimony was sent to the Plaintiff’s address.

Therefore, it is reasonable to view that the delivery of the notice of disposition in this case satisfies the requirements for delivery of custody under Article 10(4) of the Framework Act on National Taxes. This part of the Plaintiff’s assertion is without merit.

3. Conclusion

Since the instant disposition is lawful, the Plaintiff’s claim cannot be accepted. The judgment of the first instance court, which concluded otherwise, is unfair, and thus, it is revoked, and the Plaintiff’s claim is dismissed.