The burden of proof as to whether the instant tax notice was duly served on the Plaintiff

Although the instant tax payment notice sent by registered mail was returned without a mold, the Plaintiff’s tax payment notice sent to the Plaintiff on the return ledger has not been returned once. Thus, since the instant tax payment notice was sent to the Plaintiff’s domicile and the Plaintiff was presumed to have received at that time, each disposition of tax payment became effective around that time.

Article 10 of the Framework Act on National Taxes

1. Revocation of a judgment of the first instance;

2. The instant lawsuit shall be dismissed.

3. The costs of lawsuit shall be borne by all the plaintiffs of the first and second instances.

1. Purport of claim

Each taxation disposition stated in attached Table 1, which the defendant rendered against original contribution, shall be revoked in all.

2. Purport of appeal

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

1. Details of the disposition;

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, Eul evidence 1, the purport of the whole pleadings

A. As to the Plaintiff registered as an entrepreneur of ○○○○-dong 1038-15, ○○○○-dong 1038-15, the Defendant rendered each disposition imposing business income tax, etc. (hereinafter referred to as “business income tax, etc.”) on the Plaintiff as shown in the attached Table 1 (hereinafter referred to as “instant taxation disposition”).

B. When the business income tax of this case was delinquent on May 8, 2004, the defendant seized the plaintiff's right to time deposit and notified the plaintiff thereof. Accordingly, on July 22, 2004, the plaintiff appealed to each taxation of this case and filed a request for examination with the Commissioner of the National Tax Service on the ground that "the Commissioner of the National Tax Service rendered a request for examination after the expiration of the period for request" as of November 29, 2004.

2. A tax notice for each taxation of this case (hereinafter referred to as "tax notice for each taxation of this case").

A. The parties' assertion

(1) Defendant

Each tax notice of this case was served lawfully by registered mail on the plaintiff at the time of the decision of each tax disposition of this case. The plaintiff received a decision of rejection on the ground that 90 days have elapsed since the date of service of each tax disposition, which was apparent from July 22, 2004, the plaintiff did not request the above review from the Commissioner of the National Tax Service, but the decision of rejection was made on the ground that 'the lapse of the period of request'. Thus, the lawsuit of this case must be dismissed as a lawsuit for

(2) Plaintiff

The entertainment tavern of this case was registered by ○○, the birth of the Plaintiff’s husband, by stealing the name of the Plaintiff, and was registered as a business operator. The Plaintiff did not receive a lawful delivery of each tax payment notice from the Defendant. Therefore, each taxation disposition of this case should be revoked as an unlawful disposition.

(b) Related statutes;

Attached Form 2 is as shown in the relevant Acts and subordinate statutes.

C. Determination on the legitimacy of the delivery of the instant tax payment notice

(1) recognised facts

[Ground of recognition] Facts without dispute, Gap evidence 2, 3, Eul evidence 1, the purport of the whole pleadings

(A) In general, the Defendant sent a notice of tax payment of business income tax, value-added tax, or special consumption tax to the place of business, but if there is a report of business closure, it sent the notice to the place of domicile of the business operator, and

(B) Since January 5, 1993, the Plaintiff is residing in ○○○○-dong, ○○○○-dong, 201 Dong 409, 199.

(C) The instant entertainment tavern reported on December 5, 200.

(D) According to the record of notification of imposition by taxpayer, which is the data for inquiry by the National Tax Service, inputs the name, resident registration number, business registration number, address, etc. of the Commission, the subject of the instant taxation disposition, and the Defendant determined the amount of tax on the date of the instant taxation disposition and notified the Plaintiff thereof.

(E) The Defendant has the custody of the receipt of special postal items for Chapter 14 out of the total 18 copies for each of the instant tax payment notices. There is no record that there was no remaining tax payment notice or remaining tax payment notice on the return ledger prepared around that time.

(f) Around May 2004, the defendant attached the plaintiff's deposit and sent a notice of seizure of claim by registered mail. On May 8, 2004, the plaintiff received the above notice of seizure of claim at the plaintiff's domicile.

(2) Determination

Articles 8(1), 10(1), 10(1), 2, 3, 4, and 11 of the former Framework Act on National Taxes (amended by Act No. 6782 of Dec. 18, 2002) provide that where a tax authority imposes a tax disposition, it shall serve a tax notice regarding the relevant tax disposition by issuing it to the taxpayer’s domicile, residence, place of business, or office (hereinafter referred to as “domicile, place of business, etc.”) or by registered mail, and where there are reasons under each subparagraph of Article 11(1), such as where the above address, etc. is abroad and it is difficult to serve it, it shall be served by service by public notice.

Therefore, where it is found that a notice of tax payment was served at a place other than the previous place of business or domicile, the service of the tax payment notice violates the provisions of the above law and thus is invalid (see, e.g., Supreme Court Decision 79Nu168, Aug. 31, 1979) and the pertinent tax disposition is invalid (see, e.g., Supreme Court Decision 79Nu168, Aug. 31, 1979). The burden of proving the legality of service by public notice is imposed on the tax authority (see, e.g., Supreme Court Decision 94Nu41

In light of the above, since a tax notice of business income tax and value-added tax imposed prior to a report on the closure of the business place of the instant entertainment tavern is the place of business, it can be presumed that the notice was served at the place of business unless there was any counter-proof that the above tax notice was served at the place of business other than the place of business. Thus, unless there was no counter-proof that the above tax notice was served at the place of business other than the place of business, the tax notice was served at the place of business prior to December 5, 2000. The subsequent tax notice of tax disposition imposed after the report on the closure of business was served at the place of business. Since there was no change in the address since 1993, and around May 204, the Plaintiff received the notice of the seizure of physical rights by registered mail at the place of residence under the Defendant’s control, it is unlikely that the Defendant sent the notice of tax payment to the Plaintiff without any return of the pertinent tax payment notice. Thus, even if the Defendant sent the notice of tax payment notice to the Plaintiff by registered mail, the Plaintiff’s place of business.

D. Determination as to the legitimacy of the instant lawsuit

However, as long as a taxpayer seeks revocation in the sense of seeking a declaration of invalidity of a taxation disposition, the previous trial procedure should be deemed lawful (see, e.g., Supreme Court Decision 75Nu128, Feb. 24, 1976). Even if the previous trial procedure was followed, if the taxpayer’s request for review was dismissed on the ground that the tax disposition was unlawful, it cannot be deemed that the previous trial procedure had been conducted. The Plaintiff’s ground for appeal was not lawfully served. As the Plaintiff’s claim was not a tax notice, the meaning of seeking a declaration of invalidity of the taxation disposition in this case, and the Plaintiff sought revocation of the tax disposition in this case, not a declaration of invalidity of the taxation disposition in this case (the assertion that the income of the entertainment tavern in this case is not actually attributed to it), and as recognized earlier, the tax disposition in this case was lawfully served at the time of the decision of rejection, and the Plaintiff’s request for review was filed on July 22, 2004, and thus, the period for request for review should have elapsed later.

If so, the lawsuit of this case is unlawful as a lawsuit without going through the previous trial procedure, and thus, it should be dismissed.

3. Conclusion

Therefore, the judgment of the first instance court with different conclusions is revoked, and it is so decided as per Disposition by the decision to dismiss the lawsuit of this case.

Related Acts and subordinate statutes

Articles 8 (Service of Documents), 10 (Service Method), 11, 12 (Service by Public Notice), 55 (Objection), 56 (Relation with Other Acts), and 61 (Period of Request) of the former Framework Act on National Taxes (amended by Act No. 6782, Dec. 18, 2002)