Cheongju District Court 201Guhap2564 (2012.06)

National Tax Service Review Division 198-0240 ( November 06, 1998)

10 days after the date of service by public notice to the plaintiffs who meet the requirements of service by public notice.

The collection disposition against the plaintiffs Shin-A is null and void because it does not meet the requirements of service by public notice, and the collection disposition against the plaintiffs shall be effective in both individual service by public notice and the collection disposition against the plaintiffs shall take effect on August 3, 1998, and the validity of the collection disposition of this case against the plaintiffs shall take effect on or around August 3, 1998. Thus, it is lawful

(Cheongju) 2012Nu707 Invalidity of an assessment of inheritance tax

NewA

NewBB 5 others

Cheongju District Court Decision 201Guhap2564 Decided September 6, 2012

May 15, 2013

June 19, 2013

1. All appeals filed by Plaintiffs NewB, PriorCC, NewD, and NewF, and appeals filed by the Defendant against Plaintiffs NewA are dismissed.

2. Of the appeal costs, the parts arising between the Plaintiff NewBB, PriorCC, NewD, PriorE, and NewF and the Defendant are assessed against the said Plaintiffs, and the parts arising between the Plaintiff A and the Defendant are dependent upon the Defendant.

1. Purport of claim

A. The primary purport of the claim is to confirm that the Defendant’s imposition of KRW 000 per inheritance tax against the Plaintiffs on July 1, 1998 is invalid.

B. Preliminary claim: The defendant's disposition of imposition of 000 won of each inheritance tax against the plaintiffs on July 1, 1998 shall be revoked.

2. Purport of appeal

A. In the judgment of the court of first instance, the part against the plaintiffs in the appeal shall be revoked. Each appeal shall be filed against the plaintiffs in the judgment of the court of first instance, such as the statement in the purport of each claim. The appeal shall be filed against the plaintiffs in the same judgment as that of each claim.

B. Defendant: (a) the part of the judgment of the first instance against Plaintiff PriorA is revoked; (b) Plaintiff Prior A’s primary and preliminary claims are all dismissed.

1. Details of the disposition;

A. The deceased GG died on January 1, 1994, and the heir at the time of the death was the deceased, and there was a net HH (the deceased, hereinafter referred to as "the deceased on January 27, 201) and the plaintiffs, who were inherited property, and there was one parcel of land, not less than 000 square meters in Chungcheongnam-si, and not more than 288 square meters in property. However, the deceased and the plaintiffs, co-inheritors of the deceased LineG, who were co-inheritors of the deceased LineG, did not file a inheritance tax report on the above inherited property, and the defendant designated the GGG as the heir under Article 12 (2) of the former Enforcement Decree of the Framework Act on National Taxes (amended by Presidential Decree No. 15968 of Dec. 31, 198, and hereinafter referred to as "former Enforcement Decree of the Framework Act on National Taxes") and imposed the inheritance tax of not more than 00 won on the deceased and the plaintiffs on July 1, 1998.

[Grounds for Recognition] The non-speed facts, Gap evidence 1, 2, 3, 7, and Eul evidence 1, 2, and 7, and the purport of the whole pleadings

2. Judgment on the defendant's main defense of safety

On March 11, 2013, the defendant submitted "Notice of Revocation of Designation of Joint and Several Taxpayers" (No. 10 No. 1) to the plaintiff Prior to the trial of the court, and "Plaintiff Prior to the trial of the court of first instance, there is no disposition that is subject to invalidation or cancellation, and thus there is no interest in the lawsuit," it is to be determined on the ground of this safety claim that other co-inheritors's obligation to jointly pay inheritance tax to be held by one of the co-inheritors becomes final and conclusive by the taxation of each of the above co-inheritors, and therefore, the defendant's obligation to jointly and severally pay taxes to the plaintiff prior to the amendment by Law No. 5193 of Dec. 30, 1996, and the defendant's obligation to jointly and severally notify the plaintiff's obligation to pay taxes to each of the co-inheritors and the new co-inheritors's obligation to pay taxes to each of the above co-inheritors, and the defendant's obligation to jointly and severally notify each of the plaintiff's obligation to pay taxes to each of separate co-inheritors.

3. The plaintiffs' assertion

A. The defendant designated the deceased as the successor representative of the deceased NewG, notified the deceased of the collection disposition of this case, and in this case, it does not fall under the case where the inheritor's representative is designated and the notification of inheritance tax can only be made. Thus, the above notification to the deceased does not affect the plaintiffs. Accordingly, the collection disposition of this case is unlawful.

B. Furthermore, as above, the defendant designated the deceased as his successor representative and claimed that the deceased used the notice of the collection disposition in this case as well as that of the plaintiffs by service of public notice, but there is not sufficient evidence as to whether the notice of the collection disposition in this case was actually made by public notice to the plaintiffs, and even if service by public notice to the plaintiffs was made by public notice to the plaintiffs, it is null and void because it was made without satisfying the requirements for service by public

C. In addition, at the time of the above service by publication, the Defendant made a public announcement without entering the address of the Plaintiff NewCC, PriorD, and PriorE differently from the facts, and without entering the back of the resident registration numbers of the Plaintiff NewCC and PriorD, and therefore, the service by publication to the Plaintiffs is not effective due to the violation of the procedure, and the collection disposition of this case is unlawful.

D. Meanwhile, the Defendant stated only the name of the relevant inheritor and the total amount of inheritance tax in the instant tax collection disposition, and did not state the name of the remaining inheritor or the remaining inheritor's portion of inheritance and the amount of tax payable by each inheritor. In this regard, the instant tax collection disposition is unlawful.

E. Therefore, seeking confirmation of invalidity of the instant collection disposition and seeking a revocation of the instant collection disposition as preliminary.

4. Relevant statutes;

The entries in the attached Table-related statutes are as follows.

5. Judgment on the main claim

A. Determination on the validity of the designation of the representative of the heir and the notification

1) In order to determine specific tax liability for taxes imposed on the basis of the method of taxation, such as lives, and inheritance tax, a tax payment notice shall be given individually to each of the persons jointly liable for tax payment, and only their representative or a person who has convenience in the collection of national taxes under Article 8 of the former Framework Act on National Taxes (amended by Act No. 5579 of Dec. 28, 1998, and hereinafter referred to as the former Framework Act on National Taxes) shall not be notified individually to each of the persons jointly liable for tax payment (see, e.g., Supreme Court Decision 87Nu545, Nov. 22, 198). Accordingly, the notice of the collection disposition in this case shall also be given individually to the deceased and the plaintiff mold.

2) Meanwhile, Article 12(2) of the former Enforcement Decree of the Framework Act on National Taxes provides that the Defendant shall designate the deceased as his heir and notify him of the instant collection disposition. However, Article 24(2) of the former Enforcement Decree of the Framework Act on National Taxes provides that "two or more heirs shall be jointly and severally liable to pay national taxes, additional dues, and expenses for disposition on default, which are imposed or payable by the decedent according to their inheritance, within the limit of the property acquired by inheritance," and Article 12(1) of the former Enforcement Decree of the Framework Act on National Taxes provides that "he heir under Article 24(2) of the former Enforcement Decree of the Framework Act on National Taxes shall appoint his representative and shall be liable to report to the head of the competent district tax office." Article 12(2) of the former Enforcement Decree of the Framework Act on National Taxes provides that "the head of the competent tax office may designate one of the heirs at the time of absence of the report under paragraph (1)." In light of the language and text of the above Act, it is reasonable to interpret that "the head of tax office

3) As to the instant case, there was no liability to pay the deceased and the Plaintiffs at the time of their death, and there was no dispute between the parties that the Defendant did not designate the deceased as the inheritor’s representative for the succession to the liability to pay the deceased, and therefore, in the instant collection disposition, the instant collection disposition does not fall under the case where the Defendant could appoint the inheritor’s representative, and the notification of the instant collection disposition on the deceased is not effective for the Plaintiffs other than the deceased.

B. Determination on the assertion regarding the requirements for service by publication

1) According to Article 10(1) and (2) of the former Framework Act on National Taxes, the service of a tax payment notice, and the service of a tax payment notice, in principle, shall be sent to taxpayers by registered mail. Meanwhile, Article 11(1)1 of the former Framework Act on National Taxes provides that, where an address or a place of business is located overseas and it is difficult to serve, and where the address or place of business is unclear, service by publication may be

2) First of all, according to the statements in the health stand, Eul, Eul, and Eul evidence 4 with respect to whether the notice of the collection disposition in this case against the plaintiff New A satisfies the requirements of service by public notice, and the address of the plaintiff Prior A at the time of the notice of the collection disposition in this case was 0000, Gwangjin-gu, Seoul. However, the defendant identified the address of the plaintiff prior to the notification of the collection disposition in this case and sent registered mail to the above address to Seoul Songpa-gu, and promptly returned the registered address. Accordingly, the defendant's notice of the collection disposition in this case against the plaintiff New A was invalid because the defendant's notification of the collection disposition in this case against the plaintiff New A did not meet the requirements of service by public notice. Furthermore, if the service of the tax disposition in this case is illegal, and thus the service of the tax disposition in this case is invalid (see, e.g., Supreme Court Decision 95Nu3909, Aug. 22, 195).

"3) 다음으로 항소 원고들에 대한 이 사건 징수처분 통지가 공시송달의 요건을 갖추었는지에 대하여 보건대， 갑 제1， 3， 4， 12호증의 각 기재에 의하면， 피고가 이 사건 징수처분을 통지할 당시 확인한 항소 원고들의 주소 중 원고 선CC의 주소 '서울 종로 000'은 위 원고에 대한 주민등록표에 기재된 주소 '서울 성북구 0000'과 다르고 원고 선DD의 주소 '충남 서천 0000'도 위 원고에 대한 주민 등록표에 기재된 주소 '서울 종로 0000'과 다르며， 원고 선EE의 주소 '000' 도 위 원고에 대한 주민등록초본에 기재된 '서울 서초구 00000호'와 각 다른 사설， 피고가 제출한 이 사건 징수처분 통지에 관한 '배달증명 서 인수처리대장'에 항소 원고들 중 원고 선FF에 대하여는 통지서가 반송되었다는 취지의 기재가 없는 사실은 인정이 되나， 한편 갑 제1， 2， 4， 10， 12호증， 을 제 1 내지 4， 7 내지 9호증의 각 기재， 제1심 증인 유II의 증언 및 변론 전체의 취지에 의해 인정되는 다음과 같은 사정들 즉，① 항소 원고들 중 원고 신BBB은 1996. 11. 4. '서울 강남구 0000'으로 전입신고 하였다가 이 사건 징수처분 통지 전인 1997. 5. 13. 무단전출로 인해 주민등록이 직권말소 되었는데， 피고는 위 직권말소 당시 주소지로 이 사건 징수처분 통지를 하였다가 반송되자 1998. 7. 23. 이를 공시송달한 것으로 보이는 점，② 항소 원고들 중 원고 신CC， 선DD， 신EE， 신FF(이하 '국외 거주 원고들'이라 한다)은 각 이 사건 징수처분 통지 당시는 물론 망 신GG의 사망 이전부터(원고 신CC은 1972. 10. 28.， 원고 신DD은 1970. 11. 17.， 원고 신EE은 1979. 6. 12.， 원고 선FF은 1990. 11. 17. 각 해외출국) 국외에 거주하고 있었는바， 제1심 증인 유II이 이 사건 징수처분 통지 이전에 여러 차례 망인을 만났다고 증언하고 있고， 위와 같이 망인을 상속인 대표자로 지정한 이유가 망인이 '국내거주자'였기 때문이었으며， 대전지방국세청장은 이 사건 징수처분 이후인 2001. 3. 6. 국내거주자인 망인 및 원고 선BBB， 신AA에게 국외 거주 원고들의 해외주소지를 묻는 내용의해외이민 상속인에 대한 현주소 조회서'를 보냈음에 비추어， 유II은 국외 거주 원고들이 이미 모두 국외에 있었음을 알고 공시송달절차를 진행한 것으로 보이는 점， ③ 유II은 망인 에게 국외 거주 원고들에 대한 이 사건 징수처분 통지를 모두 송달하려 하였으나 망인이 이를 거부하자， 국외 거주 원고들의 국내 최후 주소지로 보이는 곳에 대해 형식상 이 사건 징수처분 통지를 등기우편의 방법으로 각 송달을 실시한 후 1998. 7. 23. 각 공시송달을 한 것으로 보이는 점，④ 원고들 스스로도 원고들과 망인은 갈등관계에 있어 서로 간에 왕래가 전혀 없었다고 주장하고 있는바，이러한 점에 비추어 유II으로서는 망인을 통해서도 국외 거주 원고들의 주소 및 연락처 등을 확보하기 어려웠을 것으로 보이는 점，⑤ 유II은 국외 거주 원고들에 대해 위와 같이 각 공시송달을 하기 전 외교통상부 등에 위 원고들의 선원 및 소재지 등에 대해 문의를 한 것으로 보이는 점，⑥ 위와 같이유II이 파악한 국외 거주 원고들 중 원고 신DD， 선CC， 신EE 에 대한 각 주소지가 위 원고들의 최후 국내 주소지와 각 상이하기는 하나， 위 원고들 에 대한 주민등록표 및 주민등록초본 등에는 위 원고들의 주소가 이미 위와 같이 국외 이주(원고 신DD， 신FF)， 미국이민(원고 신CC) 및 무단전출로 인한 직권말소(원고 신EE)로 각 기재되어 있어， 이 사건 징수처분 통지 당시에는 위 원고들의 주소가 국외에 있음이 객관적으로 밝혀진 상태였던 것으로 보이는 점 등에 비추어 보면，위 인정사실만으로는 항소 원고들에 대한 이 사건 징수처분의 공시송달이 그 요건을 결여하여 무효라고 보기 어렵고， 달리 이를 인정할 증거도 없으므로， 이 사건 징수처분의 공시송달은 '주소 또는 영업소가 국외에 있고 그 송달이 곤란한 경우'(국외 거주 원고들) 및 '주소 또는 영업소가 분명하지 아니한 경우'(원고 선BBB)에 해당하여 적법・유효하다고 봄이 타당하다. 따라서 항소 원고들의 이 부분 주장은 이유 없다[한편，피고는 당심에 이르러 원고 신FF에 대하여는 이 사건 징수처분 통지가 반송된 기록이 없으므로 적법하게 송달되었다는 주장을 추가로 하고 있으므로 살피건대， 우편물이 등기취급의 방법으로 발송된 경우， 특별한 사정이 없는 한 그 무렵 수취인에게 배달되었다고 보아 도 좋을 것이나，수취인이나 그 가족이 주민등록지에 실제로 거주하고 있지 아니하면 서 전입신고만을 해 둔 경우에는 그 사실만으로써 주민등록지 거주자에게 송달수령의 권한을 위임하였다고 보기는 어려울 뿐 아니라 수취인이 주민등록지에 실제로 거주하지 아니하는 경우에도 수취인에게 도달하였다고 추정할 수는 없다 할 것인바(대법원 1998. 2. 13. 선고 97누8977 판결 등 참조)， 원고 신FF이 이 사건 징수처분 통지 당시 국외에 있어 주민등록지에 실제 거주하지 아니한 사실은 앞서 살펴본 바와 같고，달리 이 사건 징수처분 통지가 실제 원고 신FF에게 송달되었음을 인정할 증거도 없으므로， 피고의 이 부분 주장은 이유 없다].",다. 공고 방법 위반 등 공시송달 절차 관련 주장에 대한 판단

At the time of service by public notice of the collection of this case against the plaintiffs, the facts that the defendant was identified differently from the last domicile of the plaintiffs in Korea at the time of service by public notice of the collection of this case against the plaintiffs are as seen above, and the defendant did not enter the back of the plaintiffs' resident registration numbers, and the defendant did not enter the plaintiff's passenger registration numbers in Eul, and the defendant did not enter the back of the plaintiffs' resident registration numbers, but it was found that the service of the above plaintiffs was legitimate and effective, and furthermore, even if the defendant grasps the addresses of the plaintiff's newCC, newD, and the priorE differently from the last domicile of the above plaintiffs in Korea, it was found that the service of the above plaintiffs was not legitimate and effective, and that there was no reason to find that the above service of the plaintiffs was not included in the plaintiff's resident registration numbers in the plaintiff's newCC and the first evidence No. 2, and that there was no reason to find that the above service of the plaintiffs was invalid, and that there was no reason to find that the above service of public notice was not unlawful.

D. Determination on the assertion regarding non-entry, such as the portion of inheritance and tax payable for each plaintiff

In issuing an inheritance tax payment notice to the co-inheritors, the tax assessment notice must be deemed to be subject to revocation because the taxation disposition is unlawful, and it cannot be deemed that the defect is significant and obvious (see, e.g., Supreme Court Decision 87Nu545, Nov. 22, 198). Accordingly, even if the entry of each of the plaintiffs' share of inheritance tax and tax payment amount was omitted as alleged by the plaintiffs at the time of the collection disposition in this case, the collection disposition in this case should not be deemed to be null and void as well as the name of co-inheritors who are liable for tax payment and the tax amount to be subdivided in proportion to their share of inheritance by each taxpayer, and if there were errors in which the grounds for calculation or calculation statement are specified or attached, and the entry or attachment is omitted.

E. Sub-committee

Therefore, the collection disposition of this case against the plaintiffs Shin is invalid because the service of this case does not meet the requirements of service by public notice, and the collection disposition of this case against the plaintiffs is valid in both individual service by public notice against the plaintiffs, and the collection disposition of this case against the plaintiffs is valid in each service by public notice on August 3, 1998. Thus, it is legitimate that the collection disposition of this case against the plaintiffs of this case has the validity of the collection disposition of this case.

6. Judgment on the plaintiffs' conjunctive claim

This Court's explanation concerning this part is the same as the corresponding column (from 6th to 12th 9th 9th eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth e) in the reasoning of the first instance judgment, and

O Each "Plaintiff, NewB, PriorCC, Prior E, E, and PriorF" shall be applied to the 11th 6th 6th 6 and 12th 2th 12 of the judgment of the first instance.

7. Conclusion

Therefore, the plaintiff's primary claims are justified, and each primary claims of the plaintiffs are dismissed, without merit, and all of the conjunctive claims of the plaintiffs among the lawsuits in this case are unlawful. Therefore, the judgment of the court of first instance is justified as the conclusion is consistent with this, and all appeals against the plaintiffs and the defendant's appeal against the plaintiffs in this case are dismissed, and it is so decided as per Disposition.