[1] The method of serving a tax notice on detained persons

[2] Legislative intent of Article 35 (1) 3 of the Framework Act on National Taxes and the scope of "national tax imposed on the property" under the proviso of the same Article of the same Act (the pertinent tax)

[3] Whether the part of "national taxes imposed on the property" under the proviso of Article 35 (1) 3 of the Enforcement Decree of the Framework Act on National Taxes under Article 18 (1) of the former Enforcement Decree of the Framework Act on National Taxes is invalid against the mother law (negative)

[1] The Framework Act on National Taxes does not include special provisions such as Article 169 of the Civil Procedure Act and the provisions concerning service of the Civil Procedure Act concerning persons detained in a detention house, etc., so a notice of tax payment to a person detained in a detention house, etc. shall be served pursuant to Article 8(1) of the Framework Act on National Taxes, unless there are special circumstances. In such cases, if a person to receive service at the place is not present, it may be served to such employee and other employees or a person living together with the mental capability to

[2] The legislative intent of Article 35(1)3 of the Framework Act on National Taxes is to properly harmonize the judicial request to guarantee transaction safety and the public interest request to secure the realization of tax claims with respect to the secured real rights accompanying disclosure. Thus, even if the pertinent tax is priority over the claims secured by the secured real rights, it shall not infringe on the essential contents of the secured real rights, and therefore, the "national tax imposed on the property" under the proviso of Article 35(1)3 of the same Act means a national tax imposed solely on the property owned by the person who acquired the secured real rights can be predicted to the extent that it would be imposed on the property in the future.

[3] The land excess profit tax is a tax imposed on the land excess profit acquired by its owner as a result of various development projects and other social and economic factors with the aim of contributing to equity in tax burden, stability of land price, efficient use of land, and sound development of the national economy. It should be deemed as one of so-called acquisition tax similar to the transfer income tax in that it is a taxation on unrealized income but it is a taxation on capital gains. The determination of idle land, etc. subject to land excess profit tax is based on the actual status of the land as of the end of the taxable period (3 years), except as otherwise provided in special provisions. The tax base of land excess profit tax is the amount obtained by deducting the standard market price and improvement expenses from the standard market price of the land starting from the end of the taxable period at the end of the taxable period, and it is difficult to determine whether the land in question falls under idle land, etc. as of the end of the taxable period, and whether the value of the land in question exceeds the normal increase in land prices during the taxable period, and it is not easy to estimate the excess profit tax amount(3819).

[1] Article 8 (1) of the Framework Act on National Taxes / [2] Article 35 (1) 3 of the Framework Act on National Taxes / [3] Article 35 (1) 3 of the Framework Act on National Taxes, Article 18 (1) of the former Enforcement Decree of the Framework Act on National Taxes (amended by Presidential Decree No. 15968 of Dec. 31, 1998), Articles 1, 3 (1), (2), and 11 of the former Land Excess Gains Tax Act (repealed by Act No. 5586 of Dec. 28, 1998)

[1] Supreme Court Decision 95Nu351 delivered on August 11, 1995 (Gong1995Ha, 3139) / [2] Supreme Court Decision 87Meu2515 delivered on September 26, 1989 (Gong1989, 1546)

Plaintiff (Attorney Kim Ba-young, Counsel for the plaintiff-appellant)

Korea

Busan High Court Decision 95Na8416 delivered on May 2, 1996

The judgment below is reversed, and the case is remanded to Busan High Court.

The grounds of appeal are examined.

1. The court below found on November 10, 1993 that the non-party, who was engaged in the paint sales business at his domicile, was detained in the ○○ Detention House from September 1, 1993 to December 10, 193, but his employees had been engaged in the business at the above location during that period, and that the Defendant received the non-party's employees by sending the notice of tax payment of land excess profit tax to the non-party on November 10, 1993 by registered mail at his domicile and then received it. The court below determined that the above tax payment notice against the non-party was lawful.

First, there is an error in the rules of evidence or incomplete deliberation in the above fact-finding by the court below. However, this is merely a formal violation of the law as the ground of appeal, but it is merely merely a purport of criticizeing the facts lawfully confirmed by the court below as the full power of the fact-finding court, and thus, it cannot be a legitimate ground of appeal.

Next, under the Framework Act on National Taxes, there are no special provisions such as Article 169 of the Civil Procedure Act and the provisions concerning service of the Civil Procedure Act, which apply mutatis mutandis to a person detained in a detention house, etc., and thus, a written notice of tax payment to a person detained in a detention house, etc. shall be served as a domicile, residence, place of business or office pursuant to Article 8(1) of the Framework Act on National Taxes unless there are special circumstances (see Supreme Court Decision 95Nu351, Aug. 11, 1995). In this case, if the person to be served at the place is not present, a written notice of tax payment may be served to such employee or person who can be identified as a person who is an employee. Therefore, it is proper to determine that the above written notice of tax payment was served lawfully, and there is no error of law in the misapprehension of legal principles as argued in the Grounds for Appeal

2. Article 35(1)3 of the Framework Act on National Taxes (hereinafter referred to as the "Act") provides that when the fact that the establishment of the right to lease on a deposit basis, the right to pledge, or the right to mortgage has been registered before the statutory due date of national tax is proved to be prescribed by Presidential Decree in the sale of the property for which the fact that the establishment of the right to lease on a deposit basis, the right to pledge, or the right to mortgage has been registered before the due date of national tax has been proved, any claims secured by the right to lease on a deposit basis, the right to pledge, or the right to lease on a deposit basis, if national tax or the additional dues have been collected from the proceeds of sale shall be excluded, and the so-called tax imposed on the property for sale shall take precedence over the claims secured by the right to lease on a deposit basis, the right to pledge, or the right to lease on a deposit basis, and the right to lease on a deposit basis, the right to lease on a deposit basis, or the

Article 35(1)3 of the Act aims to harmonize the judicial request to guarantee the safety of transaction with respect to the secured real right accompanying the public notice with the public interest request in order to secure the realization of tax claims. Thus, even if the pertinent tax has priority over the claims secured by the secured real right, it does not infringe on the essential contents of the secured right. Therefore, the term "national tax imposed on the property" as mentioned above means a national tax imposed by recognizing the ability to pay for the property itself, as it can be considerably predicted that the person who acquired the secured right can be imposed on the property in the future, and only means a national tax imposed by recognizing the ability to pay for the property (see Supreme Court Decision 87Meu2515, Sept. 26, 1989).

However, the land excess profit tax is one of the so-called acquisition tax similar to the transfer income tax in that the land excess profit tax is imposed on the land excess profit acquired by its owner as a result of the increase of land price of idle land, etc. due to various development projects and other social and economic factors (repealed by Act No. 1 and Articles 3(1) of the Land Excess Gains Tax Act, Act No. 5586, Dec. 28, 1998) with the aim of contributing to the equity of tax burden, stability of land price, efficient utilization of land, and sound development of the national economy (see Supreme Court Decision 97Nu16053, Apr. 28, 1998). The determination of such idle land, etc. subject to the land excess profit tax, etc. is de facto based on the current status of the land concerned as of the end of the taxable period (3 years), the increase of land excess profit tax after deducting the land excess profit from the standard market price of the land in question from the date of commencement of the taxable period (see Article 3(2) of the same Act).

Therefore, the land excess profit tax shall not be regarded as the "national tax imposed on the property" under the proviso of Article 35 (1) 3 of the Act, and therefore, the part of the "national tax imposed on the property" under Article 18 (1) of the Enforcement Decree, which provides the land excess profit tax, shall be null and void in violation of the mother law.

Nevertheless, the court below held that Article 18 (1) of the Enforcement Decree of the Act does not specifically specify the fact that it is recognized as the applicable tax in the interpretation of the mother law, and that it is not in violation of the mother law and it is valid and that the defendant's payment of land excess profit tax and additional dues is justifiable in preference to the plaintiff's right to collateral security in the auction procedure of this case, thereby misunderstanding the legal principles of the pertinent tax, thereby

3. Therefore, without examining the remaining grounds of appeal, we reverse the judgment of the court below and remand the case to the court below. It is so decided as per Disposition by the assent of all participating Justices on the bench.

The Chief Justice Park Jong-ho (Presiding Justice)