Seoul Administrative Court-2014-Gu Partnership-64384 (2015.05)

2014-In-depth-No. 127, 2014 (02)

Whether service by public notice is legitimate

(1) For the delivery of a tax payment notice as in the first instance judgment, the tax payment notice cannot be deemed to have been served on the taxpayer because the tax official did not visit the taxpayer's domicile two times without visiting the taxpayer's address and then served by post one time after visit.

Article 11 (Service by Public Notice for Framework Act on National Taxes)

2015Nu49148 Revocation of Disposition of Imposition of Gift Tax

ParkA and one other

AA Head of tax office and one other

Seoul Administrative Court Decision 2014Guhap64384 decided June 5, 2015

January 15, 2016

January 29, 2016

1. All appeals by the Defendants are dismissed.

2. The costs of appeal are assessed against the Defendants.

1. Purport of claim

A. The primary purport of the claim

On December 12, 2011, the head of the Defendant AA Tax Office confirms that each disposition of gift tax of KRW 6,427,431,60 (including additional tax) and KRW 2,752,92,00 (including additional tax) imposed on Plaintiff B with respect to Plaintiff BB on December 1, 2011 is null and void.

B. Preliminary purport of claim

The imposition of gift tax of KRW 6,427,431,60 (including additional tax) and the imposition of KRW 2,752,92,00 (including additional tax) by the head of the competent tax office on December 12, 2011 against Plaintiff Park Dong-B on December 1, 2011 shall be revoked in all of the imposition of gift tax of KRW 2,752,992,00 (including additional tax).

2. Purport of appeal

The judgment of the first instance is revoked, and all plaintiffs' claims are dismissed.

1. Quotation of the reasons for the judgment of the first instance;

This decision is based on the reasoning of the judgment of the court of first instance, except for the dismissal of the following contents. Therefore, this decision is based on Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

(1) On the 3rd page, the decision was made, and the service by public notice was made, from the 5th page to the 5th page.

(2) The interval between pages 4 through 4, 4, and 13 shall be as follows:

“2) Plaintiff BB and Defendant BB

A) Plaintiff B’s assertion

On December 12, 201, at around 14:06, Defendant BB Tax secretary visited Plaintiff BB at one time at the domicile of Plaintiff BB, and on December 13, 201, at around 17:20 of the same month, Defendant BB director made two visits at around 13:20, but there is no evidence to deem that Defendant BB director served by public notice on Plaintiff BB’s domicile on December 13, 201. In addition, even if Defendant BB director served by public official around 10:51 on December 13, 201, when the public official in charge visited Plaintiff BB’s domicile on one occasion as alleged by Defendant BB director, he did not meet the requirements for service by public notice, and the instant disposition also becomes invalid.

B) Claim by Defendant BB director of the tax office

On December 13, 201, 201, around 10:51, after Plaintiff ParkB’s domicile one time, service by posting a tax notice on Plaintiff ParkB on the BB’s bulletin board, but at that time, Plaintiff ParkB was absent from his domicile due to objective circumstances, and thus constitutes legitimate service by publication. Even if the service by publication was unlawful, at least on the 13th of the same month, Plaintiff ParkB visited Plaintiff ParkB’s domicile at least twice and thereby, the defect was cured, thereby having become lawful from that time.”

(3) The interval between pages 7, 2 through 7, 15 shall be as follows:

“3) Whether service by public notice to Plaintiff B is legitimate

A) Service time by public notice by Defendant BB director

Defendant BB Head of the tax office initially presented a notice on Plaintiff BB’s notice on the bulletin board of BB, only a bulletin board photograph (No. 28-2, No. 28-2) with which the date and time of filming could not be known. In addition, the Defendant BB head of the tax office asserted that “the Plaintiff BB’s notice on the bulletin board of BB was posted on the bulletin board of BB, and did not find a photograph file stored in the cell phone device for which the person in charge of the Plaintiff BB stored the photo file was changed to a new phone, and did not submit data that can identify the date and time of photographing, such as submitting an original photograph file, and then the public official in charge of BB head of tax office visited Plaintiff BB BB on December 13, 2011 at the address of Plaintiff BB on two occasions and confirmed Plaintiff BB’s absence, and then returned to BB head of tax office and immediately retired from the service by publication.”

However, on January 12, 2016, Defendant BB director of the tax office changed the existing arguments from the preparatory documents, visited Plaintiff B B B’s domicile one time, and then posted the notice of tax payment to Plaintiff B on the BB on the BB’s bulletin board on December 13, 201, and submitted the screen (No. 40-1, 2) of the file properties of the above photographic pictures (No. 28-1, 2) as evidence supporting the fact that the photographic time of posting on the BB bulletin board was 10:51 on December 13, 2011.

In light of the aforementioned arguments and the process of submitting evidence by Defendant BB director, etc., it is difficult to completely exclude the possibility of altering the portion of the photographic file properties of the Plaintiff’s legal representative from the No. 40-1 and No. 2, and Defendant BB director’s assertion that the public official in charge posted the notice of tax payment to Plaintiff BB on the BB’s bulletin board around December 13, 2011 is difficult to accept. In addition, there is no other evidence to deem that Defendant BB director served the notice of tax payment to Plaintiff BB on December 13, 2011 (the exclusion period for imposition of the gift tax in this case is until December 28, 2011).

B) Even if a public official in charge of Defendant BB’s argument posted a notice of tax payment on Plaintiff BB on the BB’s bulletin board around 10:51 on December 13, 201, after having visited Plaintiff BB’s domicile on one occasion, it cannot be deemed lawful service by public notice as it does not fall under “the requirements for service by public notice under Article 11(1)3 of the Framework Act on National Taxes and Article 7-2 subparag. 2 of the Enforcement Decree of the Framework Act on National Taxes, namely, where the tax official seeks to visit and deliver documents two or more times, but it is difficult for the recipient to serve documents within the due date due to the absence of the recipient.” Service by posting a notice of tax payment on the bulletin board of the tax office after having visited Plaintiff BB’s domicile on one occasion is considerably and clearly void (see, e.g., Supreme Court Decision 89Nu1414, Apr. 13, 190).

C) Defendant BB director’s assertion is without merit, as seen above.

2. Conclusion

Therefore, the plaintiffs' primary claims are with merit, and all of them shall be accepted. The judgment of the court of first instance is just and there is no ground for appeal by the defendants, and it is so dismissed as per Disposition.