Gwangju District Court-2018-Gu Partnership-12145 (2019.05.02)

Whether this case’s disposition is null and void because a tax notice was not served lawfully

If the father delegated with the authority to receive postal items by the Plaintiff refuses the notice of tax payment of the instant disposition without justifiable grounds, the Defendant may place the notice of tax payment at the domicile of the instant case, which is lawful by means of the custody and delivery under the latter part of Article 10(4)

Article 10 of the former Framework Act on National Taxes (Amended by Act No. 11873, Jun. 7, 2013)

The revocation of revocation of disposition of imposition of capital gains tax under Gwangju High Court 2019Nu11094

AA

BB Director of the Tax Office

on December 22, 2019

on December 26, 2019

1. The plaintiff's appeal shall be dismissed.

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

the Gu Office's place of service and place of service

The judgment of the first instance is revoked. The transfer income tax reverted to the Plaintiff on April 15, 2013, which the Defendant rendered to the Plaintiff on April 15, 2013

487,436,400 won is confirmed to be null and void.

1. Details of the disposition;

A. On April 15, 2013, the Defendant decided and notified the Plaintiff of KRW 487,436,400 (hereinafter “instant disposition”).

나. 피고는 2013. 4. 17. 위 납세고지서를 등기우편으로 발송하였으나 반송되었고, 다시 2013. 4. 25. 송달하였으나 송달되지 않았으며, 이에 피고 소속 직원은 2013. 5. 14. 위 납세고지서를 가지고 직접 원고의 주민등록상 주소지인 광주 ◇구 로 175, 105동 302호(◈◈동, ☆☆아파트, 이하 '이 사건 주소지'라 한다)를 방문하여 원고의 아버지인 CCC에게 교부송달 하고자 하였으나, CCC가 그 수령을 거부하여 이 사건주소지에 위 납세고지서를 놓아두었다.

C. DD, on May 16, 2013, sealed the above tax payment notice, served on the Defendant with a postal item stating that “When the interior documents of this case were illegally dumped and disposed of in a lawful manner due to destruction,” and received the said notice on May 21, 2013 from the property tax and the property tax belonging to the Defendant (see, e.g., the returned tax payment notice, etc.) on May 21, 2013 (see, e.g., e., e., e., e., e., e., e.

[Ground of recognition] Facts without dispute, Gap evidence 2, 3, Eul evidence 1 and 2 (including paper numbers; hereinafter the same shall apply) and the purport of the whole pleadings

2. The plaintiff's assertion

이 사건 주소지가 원고의 실제 주소가 아닐 뿐 아니라, 원고가 이 사건 주소지에 거주하던 원고의 아버지 CCC에게 수령권한을 위임한 사실도 없으므로, 피고로서는 이 사건 처분에 관한 납세고지서를 원고가 실제로 거주하는 광주 ◇구 로 175, 105동 1501호(◈◈동, ☆☆아파트)나, 원고의 영업소인 광주 ◇◇구 △△△로 46, ◈◈◈◈유치원(◎◎동)에 송달하였어야 한다. 그럼에도 피고는 이 사건 주소지에 유치송달을 하였는바, 이러한 송달은 부적법하여 무효이고, 따라서 그에 따른 이 사건 처분도 무효로 보아야 한다.

3. Determination

A. Relevant regulations and legal principles

1) Article 8(1) of the former Framework Act on National Taxes (amended by Act No. 11873, Jun. 7, 2013; hereinafter “Framework Act on National Taxes”) provides that “documents prescribed by this Act or other tax-related Acts shall be served at the domicile, domicile, place of business or office of the person in whose name the documents are to be served,” and Article 10(1) provides that “documents shall be served by means of delivery, mail or electronic delivery under Article 8,” the main sentence of Article 8(3) provides that “a document served by delivery shall be served by a public official of the relevant administrative agency at the place where the documents are to be served shall be served to a person to be served at the place where the documents are to be served,” and Article 8(4) provides that “a document may be served to a person to be served at the place where the documents are to be served may be served to a person to be served, or an employee, employee or a person living together with the person to be served at the place where the documents are to be served without justifiable grounds.”

2) In cases where the service of a tax payment notice regarding a taxation disposition is unlawful, the service of the tax payment notice does not take effect, and the subsequent taxation disposition is null and void (see, e.g., Supreme Court Decision 95Nu3909, Aug. 22, 1995). The Plaintiff bears the burden of proving that the service of the tax payment notice was invalid in a lawsuit claiming that the service of the tax payment notice is unlawful and thus, the tax payment notice was not served or unlawful (see, e.g., Supreme Court Decisions 9Da1260, Jun. 1, 2001; 2009Du3460, May 13, 2010).

3) Meanwhile, Article 8(1) of the former Framework Act on National Taxes refers to a place that serves as a basis for livelihood in principle, but the place of resident registration, which is move-in according to the intention of the holder of the title deed, is also included therein unless there are special circumstances (see, e.g., Supreme Court Decision 98Du1161, Apr. 10, 198). Unless otherwise provided in other Acts, the resident registration place under the Resident Registration Act shall be the address in the public law relationship (Article 23(1) of the Resident Registration Act). Furthermore, the term “person to be served” under Article 10(4) of the former Framework Act on National Taxes includes not only the taxpayer but also the delegated person, and the delegated person of the right to receive the resident registration at this time does not need to be the employee of the recipient or other employees or a person living together (see, e.g., Supreme Court Decision 98Du17074, Mar

B. Specific determination

위 관련 규정 및 법리에 비추어 판단하건대, 갑 제3 내지 8호증, 을 제2, 3, 4호증의 각 기재 및 영상, 제1심법원의 광주 ◇구 ◈◈동 ☆☆아파트 관리사무소 및 광주 ◇구 ◈◈동사무소에 대한 각 사실조회결과 및 변론 전체의 취지에 비추어 알 수 있는 다음과 같은 사실 및 사정들을 종합하여 보면, 이 사건 유치송달은 구 국세기본법 제8조및 제10조에 따른 적법한 송달로써 유효하다고 함이 상당하다. 따라서 이와 다른 전제에 선 원고의 주장은 받아들이지 않는다.

① 원고는 1997. 4. 25. CCC의 자녀로 이 사건 주소지에 전입신고를 하였다가 1997. 12. 31. 전출하였다. 그 이후 원고는 2008. 5. 22. 무렵부터 광주 ◇구 로 175, 105동 1501호(◈◈동, ☆☆아파트)에 주로 거주하였음에도, 2012. 3. 15.부터 2012. 3. 28.까지, 2012. 5. 30.부터 2017. 2. 7.까지, 2017. 4. 20.부터 현재까지 이 사건 주소지로 주민등록법상 전입신고를 하였는데, 이와 같이 원고가 이 사건 주소지와 같은 건물에 주로 거주하면서도 주민등록법상 전입신고를 한 이유는 전기요금 감면이나 농지 취・등록세 감면 혜택을 받는 등 자신의 생활상의 편익을 위한 것이었다.

② The purpose of the Resident Registration Act is to promote the convenience of residents’ living and properly handle administrative affairs by clearly ascertaining the movement of population, such as the residential relationship of residents, etc. (Article 1 of the same Act). To the same effect, “Unless otherwise prescribed by other Acts, the place of resident registration shall be the address in the public law relationship.” (Article 23(1) of the same Act). If a move-in report is made to a place different from the actual place of resident registration for the convenience of their living, such as the Plaintiff, there is no special circumstance to regard only the actual place of resident registration as the address under Article

③ While the Plaintiff had his domicile in the instant case as his domicile, it sent at least 111 general and registered mail related to public law relations, including the Plaintiff’s property tax, to the address in the instant case (see, e.g., evidence No. 4). Nevertheless, the Plaintiff appears to have not been returned on May 15, 2012, and on July 10, 2014, there is no circumstance to deem that CCC or the Plaintiff raised an objection in addition to the above partially returned mail and the instant tax payment notice. In particular, in the case of registered mail, the Plaintiff’s father, CCC, GGG, JJ and CCC’s sibling, GG, J and CCC’s residence, and DD (see, e.g., the Plaintiff’s registered mail sent from the mine area to the instant address, but not directly received the instant mail, and the Plaintiff did not directly receive the property tax.)

④ The Plaintiff asserts that, as of May 14, 2013, the delivery date of the instant tax payment notice, the Plaintiff ought to determine whether the right to receive the instant tax payment notice should be delegated solely on the basis of registered mail, among the postal items served prior to the delivery date. However, in the case of ordinary postal items, barring any circumstances such as the Plaintiff’s failure to receive property tax, etc., the Plaintiff may reasonably determine whether to delegate the right to receive property tax at the time of May 14, 2013, taking into account the circumstances before and after the lapse of the period. Therefore, the Plaintiff’s assertion is not accepted ( even according to the Plaintiff’s assertion, the fact that each of the property tax payment notices issued by the Gwangju Metropolitan City Mine-gu Office and the Southern-gu Office was not returned on September 12, 2012, around July 11, 2012, and around March 27, 2013).

⑤ On the other hand, on September 12, 2012, DDR received the notice of property tax against the Plaintiff sent to the Plaintiff by registered mail from the Gwangju Metropolitan City Mine Office on May 16, 2013, which entered the above notice of tax payment and the notice of property tax on May 16, 2013, as seen earlier, (i) sent to the Defendant, along with a letter stating that “this inside document was unlawfully dumped and destroyed, so it is lawful to process it was destroyed and returned; (ii) on May 21, 2013, DDR received the notice from the Defendant’s property tax and the property tax, and (iii) received it on May 21, 2013. It is difficult to readily accept the reasons why DDR received the registered mail from the Plaintiff and did not return it. In light of the empirical rule, DDR received the notice of tax payment delivered to the Plaintiff, and (iv) returned it as above, and (iii) was presumed that CCC, etc. served the notice of tax payment in this case on the Plaintiff.

(6) In full view of the following: (a) most of the Plaintiff’s postal items sent to the instant domicile were served almost effective; (b) the purpose and contents of the Resident Registration Act as seen earlier; (c) the Plaintiff transferred his resident registration to the instant domicile for convenience of his own living; and (d) the Plaintiff’s father, not the Plaintiff, who resides in the instant domicile; and (c) the instant tax payment notice was sent to the Defendant two days after the instant domicile was served at the instant domicile; and (d) the Defendant returned the instant DD, it is reasonable to deem that the Plaintiff delegated the Plaintiff’s right to receive documents, etc. to be served to his father, CC, etc., who resides in his/her domicile (see, e.g., Supreme Court Decision 84Nu195, Oct. 10,

7. Furthermore, as seen earlier, so long as CCC is included in the “person to be served” under Article 10(4) of the former Framework Act on National Taxes, if the above CCC refuses to receive documents without any justifiable reason, it is sufficient to serve documents on the instant domicile pursuant to the proviso of Article 10(4) of the former Framework Act on National Taxes, and in such a case, it is difficult to view that the documents must be served on the place where the Plaintiff mainly resides or the Plaintiff’s place of business.

4. Conclusion

Thus, the plaintiff's claim of this case shall be dismissed as it is without merit, and the judgment of the court of first instance shall be this.

As the conclusion is the same, the plaintiff's appeal is dismissed for lack of grounds.