Seoul Administrative Court-2017-Gu Partnership-56797 ( November 17, 2017)

Cho Jae-2017-1258 (Law No. 12, 2017)

It is improper that a tax payment notice fails to meet the requirements for service by publication.

When comprehensively considering the process of service by public notice of this case, the Plaintiff’s domicile, etc., the notice of tax payment against the Plaintiff is deemed not to meet the requirements for service by public notice under Article 11(1)2 and 3 of the Framework Act on National Taxes, and thus the disposition of tax imposition against the Plaintiff should be revoked

Article 11(1) of the Framework Act on National Taxes

2017Nu8840 Other global income and revocation of such disposition

SAA

BB Director of the Tax Office

July 25, 2018

October 17, 2018

1.The judgment of the first instance shall be modified as follows:

The Defendant’s imposition of KRW 000 of global income tax (including additional tax) for the year 2009, which was made on June 27, 2012 against the Plaintiff and the imposition of KRW 000 of global income tax for the year 2010 (including additional tax) shall be revoked.

2. All costs of the lawsuit shall be borne by the defendant.

As stated in the Disposition No. 1 (the plaintiff corrected the date of disposition from July 25, 2012 to June 27, 2012, and withdrawn the claim for revocation of the disposition of additional dues).

1. Details of the disposition;

A. From December 7, 2009, the Plaintiff is registered as the representative director of theCC Co., Ltd. (hereinafter “instant company”) that carries on the business of importing and selling automobiles from December 7, 2009.

B. On September 201, the head of the DD Tax Office, based on the non-conforming data on the tax invoice of the company of this case, shall increase the value-added taxx in 2009 and the value-added taxx in 1, 2010 and 2,010 based on the non-conforming data on the tax invoice of the company of this case, and shall add the proceeds from the omission of the return to the gross income, and shall add the proceeds from the omission of the return to the gross income, and shall increase the corporate taxxx in 2009 and the corporate tax for 2010 business year (the tax amount shall be zero won or tax base - xxx source correction -x source) as the bonus for the plaintiff, and shall notify the change in the amount of income to the head of the E E tax office at that time.

C. On June 5, 2012, the Defendant adjusted each increase in the Plaintiff’s global income taxx (including additional taxes) and global income taxx (including additional taxes) for the year 2010, respectively. On June 12, 2012, the Defendant sent a tax payment notice on the global income tax (hereinafter “instant tax payment notice”) by registered mail to Doo, which is the Plaintiff’s domicile, on the Plaintiff’s resident registration, but returned on June 18, 2012, the payment deadline was changed (from June 30, 2012 to July 25, 2012) and served the instant tax payment notice on June 27, 2012 (hereinafter “instant disposition”).

D. On March 6, 2017, the Plaintiff filed an appeal with the Tax Tribunal on the instant disposition. However, on June 12, 2017, the Tax Tribunal dismissed the Plaintiff’s claim for inquiry on the ground that the Plaintiff’s claim was unlawful on the ground that 90 days from the date of receipt of the notice of disposition was 90 days.

2. Determination on this safety defense

A. The defendant's assertion

Since the Plaintiff did not reside in the instant domicile at the time of the delivery of the instant tax notice, and the actual domicile is virtually unclear due to the Plaintiff’s failure to perform his/her duty to move-in report on the actual domicile, this constitutes “a unclear address” under Article 11(1)2 of the former Framework Act on National Taxes (amended by Act No. 11604, Jan. 1, 2013; hereinafter “former Framework Act on National Taxes”). Meanwhile, as the registered mail sent by the Defendant was returned, and the Defendant was confirmed to reside in the instant domicile at the time of delivery of the notice of tax notice, this constitutes “an absentee who is the recipient” under Article 11(1)3 of the former Framework Act on National Taxes. The Defendant served the instant tax notice on June 27, 2012 pursuant to Article 11(1)2 or 3 of the former Framework Act on National Taxes, the instant tax notice shall be deemed to have been served on the Plaintiff on July 12, 2012, and thus, the Plaintiff’s appeal against the instant tax notice shall be lawful and unlawful.

(b) Fact of recognition;

1) On April 21, 2010, the Plaintiff filed a move-in report with thep, but filed a move-in report with the domicile of the instant case on June 28, 2010.

2) A prosecutor belonging to HH District Prosecutors’ Office filed an application for detention warrant against the Plaintiff with the JJ District Court, while investigating the Plaintiff’s alleged violation of the Plaintiff’s Customs Act, around the second half of 2010. The JJ District Court issued a detention warrant to interrogate the Plaintiff on December 13, 2010, but the above detention warrant was not executed.

3) KK지방검찰청 검사는 이 사건 회사의 감사인 ㄷㄷㄷ과 주식회사 ㄹㄹ의 임원인 ㅁㅁㅁ에 대하여 특정경제범죄가중처벌등에관한법률위반(배임) 혐의 등에 대한 수사를 진행하던 중 2011. 8. 19. 참고인인 원고의 소재 불명을 이유로 불기소처분(참고인 중지)을 하였다.

4) On November 11, 201, the head of the DD Tax Office sent a tax payment notice, etc. for the instant company to the domicile of the instant company by registered mail, but on November 15, 201, when the said tax payment notice, etc. was returned, the said tax payment notice, etc. was served by public notice on November 15, 201.

5) On April 13, 2012, the Defendant sent a notice of pre-announcement of taxation on the instant disposition to the domicile of the instant case by registered mail, but the said notice of pre-announcement of taxation was returned. After that, the Defendant’s employee found the instant address on May 9, 2012 and attempted to deliver the said notice, but did not look at the person at the instant address, and confirmed that another person was dead as a result of inquiring at the apartment management office. Accordingly, the Defendant served a notice of pre-announcement of taxation on the instant disposition on May 9, 2012.

6) On June 12, 2012, the Defendant sent the instant tax payment notice to the domicile of the instant case by registered mail, but the said tax payment notice was returned on June 18, 2012. Accordingly, the Defendant did not take measures, such as re-delivery of the said tax payment notice or re-delivery of the said tax payment notice, and served the said tax payment notice by publication on June 27, 2012.

7) On July 25, 2012, the head of the RR Dong having jurisdiction over the domicile of the instant case, on the ground that the Plaintiff was illegally transferred from the domicile of the instant case, the “registration of unknown residence” was made with the Plaintiff’s domicile as administrative management address pursuant to Article 20(6) of the Resident Registration Act.

C. Determination

1) Whether the requirements for service by public notice under Article 11(1)2 of the former Framework Act on National Taxes are satisfied

Article 11(1)2 of the former Framework Act on National Taxes refers to a case where a tax authority investigates an address or a place of business of a person to be served with due care, but the address or place of business of the person to be served with due care is unknown (see Supreme Court Decision 98Du18701, May 11, 199). Meanwhile, when a taxpayer contests the validity of service by public notice, the tax authority bears the burden of proving the legality of service by public notice (see Supreme Court Decisions 94Nu4134, Oct. 14, 1994; 96Nu3562, Jun. 28, 1996). In light of the aforementioned legal principles, the service by public notice in this case is deemed to have failed to meet the requirements under Article 11(1)2 of the former Framework Act on National Taxes (see Supreme Court Decision 98Du18701, May 11, 199).

According to Article 10 of the former Framework Act on National Taxes, a tax payment notice shall be served by means of delivery, mail, etc., but in principle, by registered mail shall be served by a tax office employee at the place where the document is to be served. In addition, according to Articles 15, 16, and 17 of the former Regulations on the Management of National Taxes (amended by National Tax Service Directive No. 1971, Jan. 21, 2013) (amended by National Tax Service Directive No. 1971, Jan. 21, 2013), a tax payment notice shall be served by registered mail, and a notice shall be served by registered mail when the notice is returned. If it is deemed inappropriate to serve a notice by mail because it is impossible to verify the address of the first returned notice by the document on the tax base and public record, the above service notice shall be served on a local business trip in principle, and if the recipient temporarily fails to serve a ballot ticket at the place where the document is to be served, and the service of the notice shall be served by registered mail, etc.

The notice of tax payment of corporate tax and the notice of tax notice on the disposition of this case were sent to the address of this case, but the defendant's employee was confirmed on May 9, 2012 at the apartment management office and confirmed that another person was living at the address of this case. However, it is still unclear whether the reason for return (e.g., the addressee's identity, the absence of the addressee, and the absence of the closing door) is unclear, and it is still unclear as to the actual resident and the plaintiff's relation with the apartment management office. Furthermore, the above circumstances are not only the reason for not issuing the notice of tax payment of this case but also the fact that the tax notice of this case was sent for more than one month from the time of the return of the tax payment notice of this case.

JJ지방법원이 2010. 12.경 원고에 대하여 발부한 구속영장이 집행되지 않았던 점, KK지방검찰청 검사가 2011. 8.경 원고의 소재 불명을 이유로 ㄷㄷㄷ등에 대하여 불기소처분(참고인 중지)을 하였던 점 등에 비추어 보면, 원고는 이 사건 납세고지서가 공시송달될 무렵 수사기관의 추적을 피하여 도피 중이었던 것으로 보인다. 그런데 이와 같은 객관적인 사실관계는 사후에 드러난 것에 불과하고, 피고가 이 사건 납세고지서를 공시송달하기 이전에 위와 같은 사실관계를 조사하거나 파악하였다고 볼만한 자료는 없다.

On July 25, 2012, on the ground that the plaintiff was absent without permission from the domicile of this case, the "registration of unknown residence" was made with the plaintiff's administrative address as the plaintiff's administrative address. However, such circumstance was only caused after the service notice of this case was served by public notice, and thus, the defendant did not have any reason to investigate or grasp the service notice of this case in service by public notice.

2) Whether the requirements for service by public notice under Article 11(1)3 of the former Framework Act on National Taxes are met

Article 11(1) of the former Framework Act on National Taxes provides that "any case prescribed by Presidential Decree, such as where a document by registered mail is served at a place where the person prescribed by Article 10(4) is not in a place where the document is to be served, and such document is returned due to the absence of the recipient, etc." Article 7-2 of the Enforcement Decree of the Framework Act on National Taxes provides that "any case where it is deemed difficult to serve a document by the due date for payment because a document by registered mail was served by the recipient, but the document is returned due to the absence of the recipient," and subparagraph 2 of Article 11 provides that "any case where a tax official intends to visit a taxpayer two or more times to deliver a document, but it is difficult to serve a document by the due

In this case, there is no evidence to acknowledge that the tax payment notice of this case was returned due to the absence of the recipient, so service by public notice cannot be made pursuant to Article 7-2 subparagraph 1 of the Enforcement Decree of the Framework Act on National Taxes (if the reason for return is not a closed document or the address is unknown, it shall not be deemed as a case where a document under Article 7-2 subparagraph 1 of the Enforcement Decree of the Framework Act on National Taxes was served by registered mail but the recipient was confirmed as the absence of the recipient," and thus, it shall not be deemed as a case where the tax official visited the plaintiff two or more times to deliver the tax payment notice of this case, so the tax official cannot serve by public notice pursuant to Article 7-2 subparagraph 2 of the Enforcement Decree of the Framework Act on National Taxes. Accordingly, service by public notice of this case shall not be deemed to have failed to meet the requirements for service by public notice as provided in Article 11-1

3) Sub-determination

As seen earlier, service by public notice of tax payment notice of this case does not meet the requirements. Accordingly, the period for appeal under Article 68(1) of the former Framework Act on National Taxes cannot proceed, since the instant tax payment notice was not lawfully served on the Plaintiff. On a different premise, the Defendant’s principal safety defense to the effect that the instant lawsuit is unlawful cannot be accepted.

3. Judgment on the merits

A. The plaintiff's assertion

1) The instant tax notice by public notice did not meet the requirements. Accordingly, the instant tax notice by public notice cannot be imposed on the Plaintiff with the income accrued to the Plaintiff. The instant disposition is unlawful in that sense, and thus ought to be revoked.

B. Determination

Where a tax notice was served by public notice, but the service by public notice is unlawful, the pertinent tax disposition shall be deemed null and void (see Supreme Court Decisions 82Nu332, May 9, 1984; 2010Du11320, Dec. 24, 2014).

In other words, on June 27, 2012, the Defendant served the instant tax payment notice by means of public notice on June 27, 2012, but such service by public notice is inappropriate, as seen earlier. Therefore, the instant disposition is deemed null and void. Therefore, the Plaintiff’s assertion seeking revocation of the instant disposition is well-grounded in the sense of seeking confirmation of invalidation (as long as the Plaintiff’s assertion on this part is with merit, no further determination is made as to the remainder of

4. Conclusion

Therefore, the plaintiff's claim of this case is justified, and the judgment of the court of first instance is unfair differently from this conclusion. Accordingly, it is decided as per Disposition by the court of first instance, including the correction and reduction of the purport of the claim in the court of first instance.