Seoul Administrative Court 2015Guhap72351 ( October 31, 2016)

A notice of payment under the National Tax Collection Act includes related details of notification as well as a notice of payment, and thus does not constitute an invalidation due to a defect in the duty payment notice.

In view of the fact that the obligation to jointly and severally pay gift tax is a subordinate obligation to the donee’s liability for tax payment as well as the duty to pay taxes under Article 12 of the National Tax Collection Act, as well as the duty to pay taxes under Article 9 of the same Act, the duty to pay taxes can not be deemed to constitute grounds for invalidation of duty payment due to defects in the form merely because of differences in the form of the tax payment notice.

Article 9 (Notification of Tax Payment)

Article 4 (Gift Tax Liability)

2016Nu41509 Action Demanding nullification of a seizure disposition

Park AA

○ Head of tax office

Seoul Administrative Court Decision 2015Guhap72351 Decided March 31, 2016

October 19, 2016

November 1, 2016

1. The plaintiff's appeal is dismissed.

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

On April 12, 2012, the judgment of the court of first instance is revoked. Each attachment disposition against the deposit claims listed in attached Form 3, which was issued by the Defendant on June 27, 2012 as to the deposit claims listed in attached Form 1, among the indication of attached bond claims, is invalid.

1. Progress from the donation of this case to the seizure disposition;

A. On May 21, 2007, the Plaintiff donated the following three parcels of land to Kima, and completed the registration of ownership transfer pursuant to the name of Kima on the 25th day of the same month.

Shares of land indication donation

(1) 3,085 square meters 1,946/3,085 of forest land in Seogho-ri 142 forest land in Seogyeong-gu, Gyeonggi-gu.

(2) The same Ri 874 square meters per 192 square meters per 198/192

(3) The same Ri 879-2 orchard 6,631㎡ 722/6,631

B. The above ① (2) Each land was donated under the name of Nonparty 1, the right to collateral security and superficies of 30 years with a maximum debt amount of 1.4 billion won at the time of donation, a non-party 00 Savings Bank.

After the date of termination on May 13, 2008, respectively, was cancelled on the grounds of termination. Next, in the case of land, ① on October 8, 2008; ② on May 13 of the same year in the case of land; ③ on June 26 of the same year in the case of land, the transfer registration of ownership in the name of Nonparty 00 Asset Trust Co., Ltd. was completed on the grounds of trust respectively. On October 20, 201, the transfer registration on the grounds of sale was completed in the name of 00 Integrated Construction Co., Ltd.

C. On the other hand, while the defendant donated shares to each of the above lands as above by Kimaa, he shall do so.

On July 1, 2011, the gift tax of KRW 0,000,00, which was calculated by evaluating the value of the donated property as the standard market price, was imposed on Kima. However, when the registration of creation of a collateral security was confirmed, when the registration of creation of the collateral security was made, the gift tax of KRW 00,000,000, which was calculated by adding the amount of donated property to KRW 00,000,000, which was calculated by deducting the amount of voluntary payment from the amount of the gift tax of KRW 00,000,000,000, and the amount of the initial notified tax, was notified to Kima on July 31, 2011. At the time, the payment period was notified as of July 31, 2011.

D. After that, as Kima did not pay the gift tax of this case, the defendant on November 7, 201, the old inheritance tax and the previous inheritance tax.

Pursuant to Article 4(6) of the Inheritance Tax and Gift Tax Act (amended by Act No. 9916, Jan. 1, 2010; hereinafter referred to as the “former Inheritance Tax and Gift Tax Act”), a donor sent a notice that he/she was designated as a joint obligor for the gift tax of this case by registered mail to the Plaintiff’s domicile. At the time, such notice was sent to the Plaintiff’s domicile, and a notice of payment was also sent in accordance with Article 12 of the National Tax Collection Act (amended by Act No. 11125, Dec. 31, 201; hereinafter the same shall apply) and the attached Form 12, which provides a notice of payment to the secondary obligor.

E. Next, the Defendant came into existence on March 30, 2012, and the gift tax of this case and the additional dues thereon.

After taking a write-off as to B, between April 12, 2012 and June 27, 2012, the instant disposition was taken to seize the Plaintiff’s right of contact members and deposit claims, such as the Plaintiff’s written claim.

[Grounds for Recognition: Evidence Nos. 2 and 3; Evidence Nos. 1 through 11; Statements No. 1 through 11; Purpose of the whole pleadings]

2. Judgment on the plaintiff's assertion

A. Summary of the plaintiff's assertion

The plaintiff asserts that the disposition of this case is a valid and invalid disposition due to the procedural reason for which a notice of tax payment under Article 9 of the National Tax Collection Act was not given, and the donor's joint and several tax liability under Article 4 (4) 2 of the former Inheritance Tax and Gift Tax Act was not provided.

B. Determination

1) Whether there exists a disposition of imposition

The Gu to determine the donor’s joint and several tax liability for the gift tax of this case

A notice of payment under Article 4(6) of the Inheritance Tax and Gift Tax Act and a notice of tax payment under Article 9 of the National Tax Collection Act must exist (see, e.g., Supreme Court Decisions 2001Da83265, Apr. 26, 2002; 89Da28133, Jun. 28, 1991; 88Nu2120, Jun. 14, 198). In a case where it is confirmed that a notice of tax payment and a notice of tax payment have been sent by registered mail was sent, it shall be deemed that the notice was delivered to the addressee around that time unless there are special circumstances such as the return thereof (see, e.g., Supreme Court Decision 2007Da51758, Dec. 27, 2007).

In this case, as seen earlier, the Defendant is jointly and severally liable for the gift tax of this case

As long as a notice of notice determined and a notice of payment in attached Form 12 of the National Tax Collection Act were sent to the Plaintiff’s domicile by registered mail, each of the above documents should be deemed to have been delivered to the Plaintiff at the time of the delivery. On the contrary, the fact that each of the above documents was not delivered to the Plaintiff should be proved by the Plaintiff, who is the claimant (see, e.g., Supreme Court Decision 2014Du4795, Sept. 4, 2014). There is no evidence to acknowledge it.

Provided, That the notice of payment under the National Tax Collection Act sent by the defendant is stipulated in Article 9 of the National Tax Collection Act.

However, considering the fact that the donor’s joint and several liability for payment of gift tax is a subordinate obligation to the donee as well as the secondary liability for payment of gift tax and the payment notice under Article 12 of the National Tax Collection Act, as well as the tax payment notice under Article 9 of the same Act, and there is no difference in the content of the notification, it cannot be deemed that the defect of the tax payment notice is serious and clear, and thus the absence or invalidation of the imposition disposition is not acceptable. Accordingly, the Plaintiff’s assertion contrary thereto cannot be accepted.

2) Whether the requirements for joint and several tax liability arise

Any disposition on imposition of a tax and disposition on default for compulsory execution shall result in different dispositions.

Therefore, where a disposition of imposition is null and void as a matter of course, the disposition of arrears for the execution of the disposition of imposition is null and void, but in the absence of such disposition, the disposition of arrears, such as attachment, continues to remain effective unless the disposition of imposition is revoked (see, e.g., Supreme Court Decision 88Nu1210, Jul. 11, 1989).

On the other hand, the defect is serious in order to make any administrative disposition null and void as a matter of course.

However, in a case where there is any objective reason to believe that the legal relations or factual relations that are not subject to an administrative disposition are subject to such disposition, and it can only be clarified whether it is subject to such disposition or whether it is subject to such disposition or not after accurately investigating the factual relations, it cannot be said that it is apparent in appearance even if it is serious (see, e.g., Supreme Court Decisions 2006Da83802, Mar. 16, 2007; 2005Da31439, Oct. 26, 2006; 2002Da68485, Oct. 15, 2004).

In this case, each share of the above land donated to Kima is a collateral and superficies at the time of donation.

In light of the facts established above and the trust was finally sold to an asset management company even after its cancellation, it cannot be readily concluded that the Plaintiff’s imposition of the gift tax in this case against the Plaintiff is not capable of paying the gift tax, and it is evident that the donee does not meet the requirement of “where it is difficult to secure the tax claim even if the disposition on default was made due to default,” and that the Kima paid part of the gift tax in this case cannot be viewed otherwise. Accordingly, in this case where there is no proof by the Plaintiff as to the existence of serious and apparent defects in the imposition of the gift tax in this case, the Plaintiff’s assertion on this part cannot be accepted.

3. Conclusion

If so, the plaintiff's claim of this case must be dismissed on a different premise as it is without merit.

The judgment of the court of first instance is justified with its conclusion, so the plaintiff's appeal is dismissed and it is so decided as per Disposition.