Seoul Administrative Court-2017-Gu Group-3650 ( September 12, 2018)

Whether proof of a tax payment notice is responsible for the service

When the notice of this case is served on the Plaintiff’s resident registration address, the Plaintiff did not actually reside in the Plaintiff’s domicile, and the tax authority must prove that it was difficult to deem that the Plaintiff delegated his/her right to receive service to residents, etc. at his/her domicile.

Articles 8 and 10 of the Framework Act on National Taxes, Articles 96 and 165 of the former Income Tax Act

2018Nu66960 Revocation of Disposition of Imposing capital gains tax

AA

BB Director of the Tax Office

May 1, 2019

May 29, 2019

1.The judgment of the first instance, including any claims added in the trial, shall be modified as follows:

A. With respect to the portion exceeding KRW 41,524,597 among the instant lawsuit, the part seeking the non-existence of a disposition imposing capital gains tax or the invalidity thereof as of October 4, 2001 shall be dismissed.

B. On October 4, 2001, the Defendant’s imposition of capital gains tax of KRW 41,524,597, additional tax of KRW 4,781,722 against the Plaintiff is invalid. It is confirmed that the Defendant’s imposition of capital gains tax of KRW 6,005,463 against the Plaintiff on March 6, 200 is invalid.

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

1. Purport of claim

Defendant’s principal tax for capital gains tax for the year 2000 for the Plaintiff on March 6, 2001 6,005,463 won

The disposition of imposition or collection and the capital gains tax belonging to the year 2000 against the plaintiff on October 4, 2001

The imposition of tax KRW 47,530,060 and penalty tax KRW 4,781,722 is non-existent or invalid.

(Plaintiff) In the first instance court, the principal capital gains tax of October 4, 2001 47,530,060 won, additional tax of 4,781,722

The plaintiff filed a claim seeking confirmation of invalidity of the disposition of the plaintiff, and the plaintiff filed a claim for the disposition of the plaintiff.

The main capital gains tax as of March 6, 2001 is added selectively to the claim seeking confirmation of existence.

Additional claims seeking confirmation of the invalidity or absence of the imposition or collection disposition of KRW 6,005,463

2)

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Details of the disposition;

가. 원고는 1988. 4. 16. 서울 OO구 QQ동 140-262 대 256㎡를, 1996. 7. 9. 같은 동 140-268 대 54㎡를 각 취득하고, 1997. 11. 5. 위 각 토지 위에 연면적 1,019.46㎡의 건물(이하 '이 사건 건물'이라 하고, 위 각 토지와 합하여 '이 사건 부동산'이라 한다)을 신축하여 이를 취득하였다.

B. On October 199, www Life Insurance Co., Ltd. filed an application for voluntary auction of the instant real estate on or around October 199, and the Seoul Northern District Court accepted the said application and rendered a decision to commence auction of the instant real estate (Seoul Northern District Court No. 00000, Oct. 9, 199) on October 9, 199. The instant real estate was sold to * via the auction procedure conducted on October 12, 200 following the above decision to commence auction.

C. On October 12, 200, in order to issue a certificate of real estate transfer report, which was an essential document for filing an application for ownership transfer registration on October 12, 200, the 165(1) of the former Income Tax Act (amended by Act No. 6276 of Oct. 23, 2000; hereinafter referred to as the "former Income Tax Act") and Article 224(1) of the former Enforcement Decree of Income Tax Act (amended by Presidential Decree No. 17032 of Dec. 29, 200; hereinafter referred to as the "former Enforcement Decree of Income Tax Act"), the head of a tax office reported the transfer of real estate of this case to the head of a tax office in accordance with the provisions of Article 96 and Article 100 of the former Income Tax Act (hereinafter referred to as the "former Enforcement Decree of Income Tax Act").* In filing the report on the transfer of the above real estate, the head of a tax office reported the amount of transfer income tax for 2000.

D. Notwithstanding the above preliminary return of capital gains tax, the director of a tax office, on March 6, 2001, notified the Plaintiff of capital gains tax amounting to KRW 6,005,463 as of March 6, 2001, pursuant to Article 116(1) of the former Income Tax Act. The notice on the foregoing non-payment notice was served on the Plaintiff (hereinafter referred to as the “written notice of non-payment”) and the notice was served on the Plaintiff.

E. After that, on October 4, 2001, the director of a tax office: (a) calculated gains from the transfer of the instant real estate; (b) increased the principal income tax to 47,530,060 won; (c) imposed additional tax of 4,781,722 won; and (d) imposed additional tax of 46,306,319 won ( + 47,530,060 won + 4,781,722 won + 6,05,463 won) calculated the amount of non-payment under the above (c) from the total amount of the principal income tax and the additional tax; and (d) prepared a tax notice to pay to the Plaintiff on October 4, 2001 (hereinafter referred to as "tax notice of this case"); and (d) changed the tax office's regulations to the jurisdiction of the head of the tax office prior to and after the amendment to the Seoul Special Metropolitan City Ordinance No. 2540, Oct. 29, 2004.

[Reasons for Recognition] Facts without dispute, Gap's evidence 6, 7, Gap's evidence 8, 9, and 10's evidence 1, 2, 3, Gap's evidence 12-1, 2, Eul's evidence 1 and 2-1, 2, Eul's evidence 4-1, 2, 3, and Eul's evidence 13, and the purport of the whole pleadings.

2. The plaintiff's assertion

The instant non-payment notice and the instant tax payment notice were not served on the Plaintiff. On the other hand, the Plaintiff did not file a preliminary return of capital gains tax on the instant real estate, and the said preliminary return is merely made to make a registration on his own in the future, and thus deemed null and void. Moreover, the Plaintiff spent KRW 751,50,000 with the construction cost of the instant building, and each of the instant dispositions was calculated by calculating the tax base without including the said amount as necessary expenses. Accordingly, each of the instant dispositions should be deemed null and void or nonexistent as it has a serious and obvious defect.

3. Relevant statutes;

It is as shown in the attached Form.

4. Determination

A. Judgment on the first disposition of this case

1) Legal nature of the first disposition of this case

From January 1, 200, capital gains tax is converted from the first transfer by the method of tax return, and is obligated to pay the tax amount determined at the time when the taxpayer files the tax base and amount of tax, along with the return. Thus, where a taxpayer only files a tax base and amount of tax and notifies the tax payer that he/she should pay the same amount of tax as the reported matters without any correction as to the tax return by the tax authority because he/she fails to pay the tax amount, is a collection disposition for the collection of the final tax, and cannot be deemed a taxation disposition (see Supreme Court Decision 2003Du8180, Sept. 3,

In other words, as the Plaintiff did not pay the amount of tax reported after the scheduled return of capital gains tax**, the Defendant notified that the Defendant would pay the same amount of tax as the reported amount without any correction as to the reported matters on March 6, 2001. Therefore, the instant first disposition against the Plaintiff on March 6, 2001 should be deemed not to have the nature of the disposition of imposition, but to have the character of the collection disposition.

2) The Defendant asserts to the effect that “the delivery of the written notice of non-payment of this case is lawful, and the Defendant, at the time of issuing the written notice of non-payment of this case, had the resident registration at the location of the building of this case, but in fact, had been in a funeral condition. Therefore, the written notice of non-payment of this case should be deemed lawful service by publication pursuant to Article 11(1)2 of the former Framework Act on National Taxes (amended by Act No. 7008, Dec. 30, 2003; hereinafter “former Framework Act on National Taxes”).”

The term "if the address or place of business, which is cited as one of the reasons for service by public notice" under Article 11 (1) 2 of the former Framework Act on National Taxes, refers to a case where the tax authority investigates the address or place of business of a person who is obliged to receive service with the intent of a good manager, and the address or place of business of a person who is obliged to do so with the intent of a good manager, but it is not possible to identify such address or place of business (see Supreme Court Decision 98Du18701, May 11, 1999). Meanwhile, in a case where a taxpayer contests the validity of service by public notice, the burden of proving the legality of service by public notice lies in the tax authority (see Supreme Court Decisions 94Nu4134, Oct. 14, 1994; 96Nu3562, Jun. 28, 1996). Thus, it cannot be viewed that the Defendant’s service by public notice without due knowledge of the Plaintiff’s address or place of business.

3) In a case where: (a) whether a tax office can impose a tax return based on a preliminary return of capital gains tax; (b) whether a tax office may impose a tax return; and (c) whether a tax office’s tax return is deemed to have become final and conclusive by a taxpayer’s tax return; and (d) if a defect exists in a taxpayer’s return and constitutes grounds for invalidity of the pertinent tax office, the defect is succeeded as it is to a tax collection disposition, which is subsequent disposition (see Supreme Court Decision 2005Du14394, Sept. 8, 2006). Meanwhile, in a case where a tax payment duty becomes final and conclusive by a taxpayer’s return method, if a third party files a tax base and tax amount without the taxpayer’s intent, such reported act is deemed null and void, and thus, a tax return based on such reporting act shall also be deemed null and void (see Supreme Court Decision 2014Du10967, Nov. 27, 2014; and (b) the former Enforcement Decree provides that the ownership of real estate shall be transferred to the head of the competent tax office.

However, Article 1 (1) of the former Income Tax Act provides that "any individual falling under any of the following subparagraphs shall be liable to pay his income tax on his own income under this Act (hereinafter referred to as "resident")" and Article 4 (1) of the former Income Tax Act provides that "the income of a resident shall be classified as follows:" Article 3 of the former Income Tax Act provides that "income accruing from the transfer of assets shall be classified as capital gains; and Article 105 (1) of the former Income Tax Act provides that "the resident (excluding the person who has reported the transfer of real estate under Article 165) who transfers the assets under each subparagraph of Article 94 of the former Income Tax Act shall report to the head of tax office having jurisdiction over the place of tax payment within two months from the end of the month in which the date of transfer falls, as prescribed by the Presidential Decree, the transfer of real estate shall not be deemed to include the transfer of real estate under Article 224 (4) of the former Enforcement Decree of the Income Tax Act within two months from the date of transferring the real estate."

In other words, the return to the instant case, the health department, the transferee of the instant real estate ** the preliminary return of capital gains tax upon reporting the transfer of real estate in accordance with Article 224(1) of the former Enforcement Decree of the Income Tax Act is as seen earlier. However, such preliminary return of capital gains tax is merely a case where a third party, who is not a taxpayer, did not go through the taxpayer’s intention, and thus, such reporting is deemed null and void as it has a grave and

No. 1 of this case, which is a collection disposition based on such reporting act, shall be deemed null and void.

4) Sub-determination

The instant non-payment notice cannot be deemed to have been legally served on the Plaintiff. Moreover, the filing of the transfer income tax report by Parkbb, without being based on the Plaintiff’s intent, shall be deemed to have a significant and apparent defect. Therefore, the instant disposition No. 1 ought to be deemed null and void.

B. Judgment on the second disposition of this case

1) As to the part exceeding KRW 41,524,597 among the instant lawsuit, whether the absence of a disposition imposing capital gains tax on October 4, 2001 or the part seeking confirmation of invalidity is legitimate

In a case where an increase or decrease disposition is made, the original return or decision would lose its independent existence value by absorbing the increase or decrease disposition (see, e.g., Supreme Court Decisions 2012Du12822, Jun. 26, 2014). However, in a case where the increase or decrease disposition itself becomes null and void, the original return or decision made to determine the tax liability prior to the occurrence of the increase or decrease shall not be absorption of the subsequent increase or decrease disposition (see, e.g., Supreme Court Decisions 95Nu3909, Aug. 22, 1995; 2002Du971, Feb. 13, 2004; 2003Du1752, Jun. 10, 2004; 2003Du1752, Jun. 26, 2004).

Ultimately, with respect to the portion exceeding KRW 41,524,597 of the instant lawsuit, the part seeking the confirmation of invalidity of the imposition of the principal capital gains tax as of October 4, 2001 is unlawful as it seeks the confirmation of invalidity of the non-existent disposition.

Meanwhile, a lawsuit seeking confirmation of non-existence of an administrative disposition can only be instituted by a person who has a legal interest in seeking confirmation of non-existence of an administrative disposition. Here, legal interest in this case is recognized as the most effective and appropriate means to obtain a confirmation judgment (see Supreme Court Decision 2001Du2799, Dec. 27, 2002). However, in this case, the defendant asserts that the first disposition of this case constitutes a collection disposition under the premise that the liability for tax payment of KRW 6,005,463 is finalized by a report of capital gains tax *** the defendant's filing of a report of capital gains tax, and the first disposition of this case has the nature of collection disposition. The defendant asserts that the first disposition of this case has the nature of collection disposition. The defendant merely claims that the portion of the principal tax of this case concerning the capital gains tax of this case is an increase or decrease of the tax amount finalized by the initial report, and all claims that the tax amount is not imposed on the capital gains tax of this case as the capital gains tax of this case.

2) Of the instant disposition No. 2, determination of the main capital gains tax amounting to KRW 41,524,597 and the additional tax amount

The reason why the court uses this part of the judgment of the court of first instance is as stated in Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act, except for the cases where part of the judgment of the court of first instance is used by the court as follows.

[Supplementary Use]

In the reasoning of the judgment of the court of first instance, each of the parts stated as the "disposition of this case" in Article 2-b) of the Reasons for the judgment of the court of first instance is considered as the "Disposition of this case 2", and the respective parts stated as the "taxideo" as "*."

In addition, following the second page of the judgment of the first instance court, the following parts are added. The Defendant asserts to the effect that “the instant tax payment notice was served on the Plaintiff, which is lawful as it is in accordance with Article 11(1)2 of the former Framework Act on National Taxes.” However, there is no evidence to deem that the instant tax payment notice was served on the Plaintiff, and even if service by public notice was served on the Plaintiff, there is no evidence to deem that the service by public notice was served on the Plaintiff. Accordingly, the Defendant’s assertion cannot be accepted.

5. Conclusion

Therefore, with respect to the part exceeding KRW 41,524,597 among the lawsuit in this case, the part seeking the non-existence of a disposition imposing capital gains tax or the invalidity thereof as of October 4, 2001 is unlawful, and thus, it shall be dismissed. The plaintiff's claim seeking the invalidity confirmation of the principal tax of capital gains tax of this case and the additional tax of KRW 41,524,597 and the plaintiff's claim seeking the invalidity confirmation of the first disposition of this case among the second disposition of this case shall be accepted as well as the plaintiff's claim seeking the invalidity confirmation of the first disposition of this case, on the grounds that it is reasonable. The first judgment of the court of first instance is unfair in some different conclusions, and it shall be accepted partially by the defendant's appeal, but it shall be modified as described in the first judgment of the court,