National High Court Decision 2008Da1054 (Law No. 13, 2008)

Appropriateness of the assertion that a notice of tax payment is void as a result of failure to serve the notice

Even if the tax authority does not keep a dividend certificate, it shall be deemed that the mail sent to the addressee by means of registration in the address of the addressee, barring special circumstances, such as return, etc.: Provided, That if the addressee does not actually reside in the address, it cannot be presumed that the mail sent to the addressee.

The contents of the decision shall be the same as attached.

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

Disposition of imposition of global income tax of KRW 59,188,662 on the Plaintiff on August 12, 1999 by the Defendant

confirm that this invalidation is null and void.

1. Details of the instant disposition

The facts of other Eup are not disputed between the parties, or recognized by the purport of each of the types of evidence Nos. 1, 2, and 1, 2-1 and 2 and all of the pleadings.

A. On July 1, 1988, the Plaintiff closed its business on March 17, 1998, on the trade name, ○○○○○-1, ○○○-1, hereinafter referred to as “○○ Food”).

B. The Defendant calculated the global income amount attributed to the Plaintiff in 197 as KRW 151,424,350 on August 12, 1999, on which the Plaintiff did not file a final return on the tax base of global income tax for the year 1997 (hereinafter “instant disposition”).

2. Determination on the defense prior to the merits

Although the defendant asserts that the lawsuit of this case was filed without going through the pre-trial procedure and was dismissed as it is illegal, according to the provisions of Article 38 (1) of the Administrative Litigation Act, the lawsuit of this case is not necessary to go through the pre-trial procedure as a lawsuit to nullify the invalidity of the taxation disposition, and therefore, this argument

3. Whether the instant disposition is null and void

A. The plaintiff's assertion

[2] The plaintiff's assertion that the plaintiff's summary of the disposition of this case was not served on the plaintiff. Thus, the disposition of this case is null and void as a matter of course.

B. Relevant statutes

Article 8 (Service of Documents)

Article 10 (Service Method of Documents)

Article 12 (Effectuation of Service of Framework Act on National Taxes)

(c) Fact of recognition;

The following facts are recognized in accordance with each description of evidence Nos. 1, 2, 2-2-2, 7-1, 2, 8-2, 12 through 17, 18-1, 2, 19, 22-2 and 22-2, and the purport of the whole pleadings.

(1) On December 12, 1991, the plaintiff moved-in report under the Resident Registration Act on ○○○○-1 (2 Tongl team) [the above address was changed to ○○○○○-1 (3 Tongl team) in Mapo-gu, ○○○○-gu, ○○○○-1 (3 Tongl team)], which is the place of the above "○○ Food, ○○, ○○○-dong, Busan, ○○○○○○○○ (45 Tong-6 Ban) (44) on 1995, but later, on January 31, 2004, the plaintiff moved-in report on ○○○○○-dong, Busan, ○○○○○○ (45 Tong-6 Ban) (404) in order to make the move-in report.

(2) On July 29, 1999, the Defendant sent a notice of the result of the assessment data processing prior to the determination of global income tax for 1997, to ○○○○○○-1, which is the Plaintiff’s domicile on the Plaintiff’s resident registration, by registered mail. Likewise, on August 17, 1999, the instant tax notice was sent to the said domicile by registered mail.

(3) The notice of the result of the tax data processing prior to the above decision and the notice of this case were not returned; and

(4) On November 16, 1998 after the closure of the Plaintiff’s ○○ Food, the registration of the same trade name and the same type of business shall be made in the name of the same kind of business as the Plaintiff’s employees at the above address and the location of the business.

The '○ Food Co., Ltd.' has been established at the place of residence in which '○ Food Co., Ltd.' continued to operate '○ Food' and again reported on June 30, 200, and '○ Food Co., Ltd.', whose '○○ Food Co., Ltd.', whose '○○ Food Co., Ltd.', whose '○○ Food Co., Ltd.' holds 25% of the shares of the company, was established at the place of residence above '○ Food Co.,

D. Determination

(1) In light of the contents of the relevant Acts and subordinate statutes, a postal item shall be deemed to have been served on an addressee at that time, barring special circumstances, such as where it was sent by the law of registration in the addressee’s address, and where it was returned. However, where an addressee does not actually reside in his/her domicile, it cannot be presumed that the postal item has arrived at the addressee’s domicile, and in such a case, the tax authority must prove the arrival of the postal item (see, e.g., Supreme Court Decisions 92Nu13127, Dec. 11, 1992; 97Nu8977, Feb. 13, 1998).

(2) The above (1) facts and, in particular, facts of finding the above (c) facts and facts of finding the above (4) facts, it is difficult to find that the plaintiff had not actually resided in the plaintiff's resident registration address at the time of the disposition of this case, and that the plaintiff had already discontinued the above '○ Food' and completed the report of closure of the business. The plaintiff's wife and other family members including the plaintiff's wife are registered as resident registration at a multiple point other than the above domicile. However, the plaintiff's 1, 2, 5-1 through 10, 1, 1, 2, 8-1, 8-1, 2, 9, 10-1, 10-1, 2, and 10-1, 2, 8-2, and 10-1, and 10-1 were not clearly known that the plaintiff had not actually resided in the plaintiff's resident registration address at the time of the argument of this case. Thus, the plaintiff's notice of tax payment was not sent to the plaintiff's address.

(3) Therefore, in the case of the instant disposition, the pertinent disposition cannot be deemed as void as a matter of course without being served on the Plaintiff, and thus, the Plaintiff’s assertion from another point of view cannot be accepted.

4. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.