Seoul Administrative Court 2009Guhap29288 ( October 30, 2009)

early 2009west0499 (Law No. 29 April 29, 2009)

Service shall be effective where apartment security guards receive the notice, but are staying overseas;

In order for apartment security guards to have delegated the right to receive important registered security articles such as tax payment notice to the apartment security guards when staying abroad for a long time, there is no evidence to acknowledge this. In such a case, it cannot be presumed that a tax payment notice has reached the Plaintiff at the time when the apartment security guards were issued.

1. Revocation of a judgment of the first instance;

2. The Defendant’s disposition of imposition of KRW 100,813,237 of global income tax of KRW 210,90,670 against the Plaintiff on May 1, 2008 is revoked.

3. The costs of the lawsuit shall be borne by the Defendant in both the first and second instances.

The decision of the court of first instance is revoked. In addition, the part of the disposition imposing KRW 100,813,237 out of the disposition imposing global income tax of KRW 210,990,670 for the plaintiff on May 9, 2008 (which appears to be a clerical error in May 1, 2008) is invalid (the plaintiff added the conjunctive claim at this source).

1. Details of the disposition;

A. The plaintiff is the representative director of the PacificAA was established on March 26, 1993 in Gangnam-gu Seoul Metropolitan Government BB-7, and was closed ex officio on March 31, 2008. hereinafter referred to as "non-party company").

B. On June 1, 2007, the director of the BB tax office having jurisdiction over the location of the non-party company notified the non-party company of the correction of corporate tax for the reason that the non-party company omitted sales amounting to 487,269,200 won in the business year 2002, disposed of the above amount as bonus for the representative and notified the non-party company of the change in income amount. On June 1, 2007, the non-party company was in fact subject to the disposition of deficits approved by the local government office, and determined on November 2006 that the non-party company was not capable

C. On May 1, 2008, the Defendant imposed and notified the Plaintiff of KRW 210,990,679 of global income tax corresponding to the amount of 2002 global income tax attributed to the Plaintiff on May 1, 2008 (hereinafter referred to as the “instant disposition of imposition” of KRW 100,813,237 of global income tax corresponding to the portion for which the Plaintiff seeks revocation, which is the part for which the Plaintiff seeks revocation.

D. The Plaintiff filed an objection with the Defendant on October 10, 2008, and the Defendant, upon the lapse of 90 days from May 9, 2008 upon receipt of the notice of tax payment of the instant disposition, dismissed the said objection on November 4, 2008, on the ground that the Plaintiff’s objection was unlawful. The Plaintiff appealed and filed a request for a trial with the Tax Tribunal on January 12, 2009. The Tax Tribunal deemed the date of delivery of the said notice of tax payment to be August 30, 2008 and dismissed the Plaintiff’s request for a trial on April 29, 2009 on the ground that the said notice of tax payment was served on April 29, 2009.

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

2. Related statutes;

It shall be as shown in the attached Form.

3. Judgment on the main claim

A. The parties' assertion

(1) As the Plaintiff did not serve on the Plaintiff by May 31, 2008, the Plaintiff asserted that the disposition of this case was null and void after the exclusion period expires, the Defendant asserted that the disposition of this case was filed by the Plaintiff on October 10, 2008, which was served on May 9, 2008 and passed ninety (90) days thereafter, and that the disposition of this case was unlawful. Thus, the Defendant asserted that the lawsuit of this case was unlawful since it did not go through legitimate pre-trial procedure.

(2) In addition, on June 1, 2007, the Plaintiff alleged that the BB director of the BB tax office notified the non-party company of the change in the amount of income, and the non-party company, the withholding agent, is deemed to have paid the income concerned to the Plaintiff, the person to whom the income as indicated in the notice belongs, and at the same time, becomes final and conclusive at the same time the tax liability for withholding income of the non-party company was established. In addition, in the instant case, the Plaintiff did not constitute a case where the Plaintiff, the resident who received the disposition of income, was notified of the change in the amount of income, and the Plaintiff did not notify the Plaintiff of the change in the amount of income.

(b) Fact of recognition;

(1) The apartment house in which the Plaintiff is residing is managed separately from the registered mail and the ordinary mail, and, customarily, apartment security guards receive registered mail from the members of the crowdfunding office, enter the apartment in front of the security office and deliver it to the occupants, and the occupants have returned and processed the apartment without receiving the registered mail within 3 to 4 days. In addition, it does not appear that the occupants, including the Plaintiff, raise an objection against the security guards.

(2) From March 12, 2007 to the Plaintiff’s domicile, only the Plaintiff was registered as the resident and there is no other resident except the Plaintiff. The Plaintiff, as a permanent resident of the United States, had been frequently residing in the United States and had a history of leaving the Republic of Korea in the year 2007 at least ten times. The Plaintiff left the Republic of Korea before and after the instant disposition was taken on November 25, 2007 and entered the Republic of Korea on August 30, 2008, and entered the Republic of Korea on September 9, 2008 after departure from the Republic of Korea on September 5, 2008.

(3) The Defendant sent a tax notice of the instant disposition to the Plaintiff by registered mail, and on May 9, 2008, the mailman delivered the notice to ParkCC, an apartment security guard, and the said notice was not returned.

[Reasons for Recognition] Facts without dispute, Gap 1, 4, 5, 8, 9, Eul 4, 6 and 7, the purport of the whole pleadings

C. Determination

First, we examine whether an objection against the instant disposition was filed within the deadline for filing the objection.

In a case where a special postal item such as a general postal item or a registered postal item is delivered on an apartment in which a taxpayer is residing, the apartment security guard has received and delivered it to the resident, and the apartment residents, including the taxpayer, have not raised any objection against such special postal item delivery method, it is deemed that the resident of the apartment where the taxpayer is residing, has implicitly delegated the right to receive the registered postal item to the apartment security guard (see, e.g., Supreme Court Decision 2000Du1164, Jul. 4, 200). However, it is difficult to deem that the apartment security guard delegated the right to receive the registered postal item to the apartment security guard even in such a case, if there are special circumstances, such as where the taxpayer stays abroad without residing in the Republic of Korea at the time of receipt of the registered postal item, and the apartment security guard is virtually unable to contact with the taxpayer because of his/her address or telephone number, etc.

According to the above facts in the case, although it is recognized that apartment security guards received a tax notice of this case, the plaintiff had already left Korea and stayed abroad for five months or more, and the plaintiff returned to Korea after the lapse of three months thereafter. In order to entrust an apartment security guard with the right to receive important registered mail articles, such as a tax notice, in the situation of staying abroad for a long period of nine months or more, there should be extenuating circumstances, but in such a case, it cannot be presumed that a tax notice has arrived at the time of delivery to an apartment security guard (see Supreme Court Decision 97Nu8977 delivered on February 13, 1998). Therefore, it is difficult to recognize that the plaintiff received a tax notice of this case only after entering Korea on August 30, 2008, and all of the lawsuits regarding objection raised within ninety days thereafter and the surrounding claims raised within the objection period for objection period for the plaintiff's domicile and the plaintiff's family number, and the plaintiff's family number and the plaintiff's main claim of this case mentioned "the plaintiff's family number and the plaintiff's domicile."

Therefore, the disposition of this case that was served on the plaintiff on August 30, 2008 after the exclusion period of imposition ( May 31, 2008) was passed shall be revoked as unlawful. Thus, the plaintiff's primary claim is justified.

4. Conclusion

If so, the plaintiff's primary claim of this case is justified, and the judgment of the court of first instance is unfair. The judgment of the court of first instance is revoked, and the disposition of this case is revoked by accepting the plaintiff's primary claim, but if the plaintiff's primary claim is accepted, it is decided that the preliminary claim is not judged separately, and it is so decided as per Disposition.