The Plaintiff bears the burden of proving that a tax notice has not been served or is unlawful.

It is reasonable to deem that the representative director of the plaintiff received each tax payment notice through a third party delegated with the authority to receive postal items, such as tax payment notice explicitly and implicitly.

Article 10 of the Framework Act on National Taxes

2015Guhap67 Invalidity of Corporate Tax Imposition Disposition

O Industry Co., Ltd.

○ Head of tax office

2015.08.13

2015.09.10

1. Of the instant lawsuits, the part of the confirmation of the imposition of corporate tax as of November 11, 1997 and December 2, 1997 shall be dismissed.

2. The plaintiff's remaining claims are dismissed.

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

Cheong-gu Office

The defendant confirmed that each disposition of imposition of corporate tax of KRW 4,891,690, and corporate tax of KRW 737,905,306 for the business year of 1997, which was made on November 11, 1997 against the plaintiff, was null and void.

1. Details of the disposition;

A. On July 1, 1981, the Plaintiff was established as the head office ○○-dong 47, ○○-si, ○○○-si, and for the purpose of coal mine operation and smokeless coal processing business, and operated a business of manufacturing and selling smoke in a BB-dong 45 B-dong, Mari-dong, ○○-si, ○○-si, ○○-si.

B. On January 1, 1993, the Plaintiff reported the closure of the business of ○○ Tax Office and △△ Tax Office, respectively, and thereafter, the Plaintiff defaulted on April 30 of the same year.

C. The head of ○○ Tax Office (the Enforcement Rule of the Organization of the National Tax Service and its affiliated agencies was amended by Ordinance of the Ministry of Finance and Economy No. 150 on July 1, 2000, and the defendant succeeded to his authority; hereinafter the same shall apply) issued a disposition on default on the tax amount imposed on the plaintiff in 192, 1993, and 194, each of the corporate tax and additional tax imposed on the plaintiff on May 2, 1997, and appropriated the sale of the land outside 63, 00 ○○○-dong, 63, and 1111, and 5, and 103, 103-6, and 132-1, and 3, of the same Si ○○-dong, 197, and the sale of the land in arrears.

D. On November 11, 1997, the Defendant decided and notified the Plaintiff of the transfer margin of the above public auction real estate amounting to KRW 285,032,020 for the business year of 1997 and special surtax amounting to KRW 285,032,020 for the Plaintiff, but increased and corrected KRW 4,891,690 on December 2, 1997, and further increased and corrected this amount to KRW 1,027,829,010 on June 11, 1998;

Until then, a disposition was taken to impose KRW 737,905,30 (less than KRW 10) remaining after deducting KRW 289,923,710 (the above KRW 285,032,020 + KRW 4,891,690) paid by the Plaintiff.

Grounds for Recognition

Gap evidence Nos. 15, 16, 17, Eul evidence Nos. 4, 5, and 6, and the purport of the whole pleadings

2. Whether the part of the disposition of imposition of corporate tax dated November 11, 1997 and December 2, 1997 is legitimate

A. Summary of the plaintiff's assertion

The notice of payment of corporate tax issued by the Defendant against the Plaintiff on November 11, 1997 was served on the said AA mining center, but at the time, the Plaintiff was not the Plaintiff’s place of business, and the Plaintiff’s employee did not receive the notice. Furthermore, the Defendant did not have received the notice of payment of corporate tax issued on December 2, 1997 to the Plaintiff. Accordingly, each of the above dispositions is null and void since it was not delivered to the Plaintiff.

B. Determination

(1) In a case where an increase or decrease is made after a taxation was made, the said increase or decrease disposition is not an original disposition but an additional determination on only the tax base and tax amount in the initial disposition, including only the portion exceeding the tax base and tax amount in the initial disposition, and is re-determined as a whole. As such, the initial disposition is naturally extinguished as it was absorbed into the increase or decrease disposition, and only the said increased or decrease disposition is subject to appeal litigation. This is the same even in a case where an additional notice is given on the difference with the original decision at the time of the increase or decrease (see, e.g., Supreme Court Decision 2010Du4599

(2) In light of the above legal principles, as seen earlier, the Defendant, around November 11, 1997, determined and notified the Plaintiff of the transfer margin of the Plaintiff’s real estate sold by public auction at KRW 285,032,020 as corporate tax and special surtax for the business year of 1997. After increasing and correcting KRW 4,891,690 on December 2, 1997, the pertinent tax amount was increased and corrected to KRW 1,027,829,010 on June 11, 1998 and additionally imposed KRW 737,905,306, which is the difference between the tax base and special surtax paid by the Plaintiff up to the time. As such, the Defendant determined the difference between the tax base and special surtax on June 11, 1998 and the special surtax on June 11, 1997, and notified the Plaintiff of the increased and decreased tax amount as one of the tax base and special surtax on 197.197.2

Therefore, among the lawsuits in this case, the part concerning the confirmation of invalidity of the disposition of corporate tax as of November 11, 1997 and December 2, 1997 is illegal as it is subject to the original disposition already extinguished (hereinafter "the disposition in this case").

3. Whether the instant disposition is lawful

A. Summary of the plaintiff's assertion

Although the notice of tax payment of the instant disposition was served by LBB, because LB retired from the Plaintiff’s office at the time, it is not entitled to receive the said notice. Therefore, the instant disposition is null and void since the notice of tax payment was not served lawfully on the Plaintiff.

B. Determination

(1) In an administrative litigation claiming the invalidity of an administrative disposition as a matter of course and seeking the invalidity confirmation thereof, the Plaintiff is liable to assert and prove the grounds for such administrative disposition’s invalidity (see, e.g., Supreme Court Decision 2009Du3460, May 13, 2010). The Plaintiff bears the burden of proving that the administrative disposition did not have a notice of tax payment or is unlawful (see, e.g., Supreme Court Decision 9Da1260, Jun. 1, 2001).

Meanwhile, the Framework Act on National Taxes (amended by Act No. 6782 of Dec. 18, 2002) provides that the document under this Act or other tax-related Acts shall be served on the domicile, residence, place of business or office of the person in whose name the document is to be served (Article 8(1)); the document service by delivery or mail shall be served on the person in whose name the document is to be served (Article 10(1)); and the document service by delivery shall be served on the person in whose name the document is to be served at the place where the document is to be served by the relevant administrative agency’s public official (Article 10(3)); Provided, That if the person to be served with the document refuses to be served, the document may be served at another place (Article 10(3)). Here, “the person to be served” includes not only the person in whose name the document is to be served but also the person delegated

(2) In light of the relevant Acts and subordinate statutes and the above legal principles, comprehensively taking account of the overall purport of arguments as to Gap's evidence Nos. 12 and 17, and Eul's evidence Nos. 6, the headCC was appointed as the representative director of the plaintiff on or around February 1996 and resigned on or around July 1998. The defendant sent a tax notice of this case to the plaintiff on or around June 15, 1998 and returned it. After the plaintiff's visit the tax office to receive the above tax notice and signed the defendant's signature on the delivery book, the plaintiff was dismissed on March 19, 196 (However, it is not clear in the closed register whether the plaintiff was appointed again as the director of the plaintiff, and the plaintiff's resignation was recognized as being retired on or around August 21, 200, but there is no evidence to acknowledge that the above recognition alone is unlawful.

Rather, the evidence Nos. 4, 5, and 6 can be comprehensively acknowledged by comprehensively taking account of the following facts, namely, that due to the Plaintiff’s delinquency in payment of corporate tax, etc., the public auction disposition has been taken several times on the Plaintiff’s real estate; that is, the headCC and the director of the Plaintiff’s representative director visit the tax office from time to time to verify matters concerning the imposition of corporate tax and the public auction; and that the Defendant contacted the Plaintiff with the tax office upon the return of the instant disposition, and issued the tax notice directly at the tax office, it is determined that the Plaintiff was legally authorized to receive the said tax notice from the Plaintiff at the time of hB.

(3) Therefore, the Plaintiff’s claim premised on the invalidity of the notice of tax payment on the instant disposition is without merit.

4. Conclusion

Therefore, the part of the lawsuit of this case, which is unlawful as the confirmation of invalidity of the disposition of imposition of corporate tax as of November 11, 1997 and December 2, 1997, is dismissed, and the remaining claims of the plaintiff are dismissed. It is so decided as per Disposition.