Suwon District Court 2010Guhap13266 ( October 13, 2011)

early 209 Heavy2147 (29. 2010.06.29)

Any plaintiff's petition filed after the period of appeal expires is unlawful.

A tax payment notice, considering the fact that the notice was served on the apartment registered on the Plaintiff’s domicile as a result of the Plaintiff’s necessity, and thus, the tax payment notice was duly served on the Plaintiff upon receiving it by the actual resident, and a petition for trial filed after the period for

2011Nu27423 Revocation of Disposition of Imposition of Gift Tax

Maximum XX

port of origin

Suwon District Court Decision 2010Guhap13266 Decided July 13, 2011

August 17, 2012

September 28, 2012

1. Revocation of a judgment of the first instance;

2. The instant lawsuit shall be dismissed.

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

The judgment of the first instance shall be revoked. The imposition of KRW 000 on the Plaintiff on January 1, 2009 by the Defendant shall be revoked.

1. Details of disposition;

The reason for this part of the judgment is as stated in the corresponding part of the judgment of the court of first instance. It shall be quoted in accordance with Article 8(2) of the Administrative Litigation Act, and the main sentence of Article 420

2. Whether the lawsuit of this case is lawful

A. The defendant's assertion

While the Plaintiff served a notice of tax payment of the instant disposition on January 9, 2009, the Plaintiff filed an appeal with the Tax Tribunal on April 20, 2009, which was 90 days after the lapse of the period of appeal under Article 68(1) of the Framework Act on National Taxes, and thus, the Plaintiff’s appeal is unlawful. Therefore, the instant lawsuit is unlawful as it was filed without going through lawful procedures for a prior trial.

B. Determination

1) Facts of recognition

The following facts are not disputed between the parties, or can be acknowledged by taking into account the whole purport of the pleadings in Gap evidence 4, Eul evidence 5-1 through 4, Eul evidence 6-1 through 3, Gap evidence 7-1, 2, Eul evidence 7-2, Eul evidence 6, 7, 8, Eul evidence 13-1, 2, Eul evidence 14-1 through 4, Eul evidence 14-1 through 5, and Eul evidence 15-1 through 5:

A) On January 9, 2009, the notice of tax payment of the instant disposition was sent by registered mail, and received from xA from Y apartment Nos. 698-2, 502, 200 (hereinafter referred to as ' XX apartment'). The xA transferred the instant disposition to x apartment on February 4, 199, along with her husband, and was residing in XX apartment even at the time of the receipt of the said notice of tax payment.

B) On May 30, 2003, the Plaintiff, on the resident registration, transferred from Gangnam-gu Seoul Metropolitan Government 511-dong 212-dong 1405 (hereinafter referred to as " XX), but on March 12, 2008, transferred to XX apartment, and maintained the above domicile until April 27, 2009 (the Plaintiff’s husband KimCC also became the head of household by moving to the XX apartment on April 10, 2008).

C) The Plaintiff did not have resided in XX apartment, and even if the instant disposition had resided in XX apartment at the time of the delivery of the notice of tax payment to XX apartment, the Plaintiff registered his domicile as a XX apartment as above. This was intended to put the Plaintiff at the G apartment’s domicile within the district of the competent tax office of the rental business, which was operated by the Plaintiff, and for this purpose, the Plaintiff requested her husband KimCC-friendly HaBB to deliver the Plaintiff’s notice of tax payment upon receipt of the Plaintiff’s request that her husband KimCC-friendly MaB be able to make the Plaintiff’s domicile as a

D) From January 2008 to April 2009, both the notice of tax payment of the instant disposition and the notice of tax payment were sent to the Plaintiff in XX apartment, and all were served once more than 10 times. The Plaintiff paid each tax after the due date or the due date pursuant to the respective tax notice. The Plaintiff also filed a global income tax return with the Defendant on June 2, 2008 and May 30, 2009, on the part of the Defendant, at the domicile of XX apartment.

2) Relevant legal principles

In a case where a postal item is sent by means of registration, barring any special circumstance, it shall be deemed to have been delivered to an addressee at that time. However, in a case where an addressee or his/her family does not actually reside in the resident’s domicile and only causes damage to the resident of the resident’s domicile, it is difficult to deem that he/she entrusted the right to receive the delivery of the postal item to the resident of the resident’s domicile, and even if the addressee does not actually reside in the resident’s domicile, the postal item cannot be presumed to have arrived at the addressee. Therefore, in such a case, the tax authority must prove the receipt of the postal item. If it is recognized that the addressee or his/her family does not actually reside in the resident’s domicile and it is difficult to deem that the recipient or his/her family entrusted the right to receive the delivery of the registered domicile to the resident, it cannot be deemed to have been delivered to the taxpayer on the ground that the tax notice sent by registered mail was not returned (see

Meanwhile, Article 8(1) of the Framework Act on National Taxes provides that documents under tax-related Acts shall be served on the domicile, temporary domicile, place of business, or office of the person who holds the right to receive postal items and other documents. The term "place of domicile" refers, in principle, to the place where the person who holds the right to receive postal items and other documents is the basis of his/her life, but the registered domicile which is move-in according to his/her will shall be included therein, except in extenuating circumstances. In cases where the person who held the right to receive postal items and other documents is expressly or explicitly delegated to another person, the person who received the documents shall be deemed to have received the documents and the document shall be deemed to have been legally served on the person who received the documents. The person to whom the right to receive the documents is delegated shall not be an employee of the delegating person or a person who is living together (see, e.g.

3) Whether the notice of tax payment of the instant disposition was lawfully served on the Plaintiff

Based on the above legal principles, this case is examined.

According to the above facts, the plaintiff could have known that only the above move-in report was made without residing therein at the time the above tax notice was served, but the following circumstances can be found: ① the tax notice of this case was served on the plaintiff's domicile as the plaintiff's resident registration according to the plaintiff's necessity; ② the tax notice of this case was served on the apartment before and after the above tax notice of this case was served on the plaintiff; ③ the tax notice of this case was normally paid by the plaintiff; ④ the plaintiff's tax notice of this case was returned to the defendant's domicile after the plaintiff's request for the above tax notice of this case; ④ the plaintiff's tax notice of this case was not delivered to GB after the above tax notice of this case was delivered to GB, and the plaintiff's allegation that the above tax notice of this case was not received under the plaintiff's request for the above tax notice of this case; ⑤ The plaintiff's allegation that the above tax notice of this case was not directly received from the appellate court's domicile, and thus, the plaintiff's allegation that the above tax notice of this case was not received under the above tax notice of this case's request.

Therefore, the notice of tax payment of the instant disposition is unlawful for the Plaintiff’s petition filed on April 20, 2009, after the expiration of 90 days after the expiration of the period for filing a petition for a trial, which had been filed in XX apartment from January 9, 2009. Ultimately, the instant petition is unlawful as being filed without due process for a prior trial.

3. Conclusion

Thus, the lawsuit of this case shall be dismissed in an unlawful manner, and the judgment of the court of first instance shall be dismissed as it is unfair with different conclusions, so the judgment of the court of first instance shall be revoked and dismissed.