The meaning of "the absence of the receiver" under Article 11 (1) 3 of the Framework Act on National Taxes and Article 7-2 (1) 1 and 2 of the Enforcement Decree of the Framework Act on National Taxes.

Considering the purport of the service by public notice system under Article 11 of the Framework Act on National Taxes and the fact that allowing service by public notice is likely to excessively infringe the right to undergo a trial under Article 27(1) of the Constitution, it is reasonable to interpret that “the absence of the recipient” under Article 11(1)3 of the Framework Act on National Taxes and Article 7-2 subparag. 1 and 2 of the Enforcement Decree of the Framework Act on National Taxes is limited to cases where a taxpayer deserts from the place where the existing service is to be made for a long time and where the exercise of the right to impose taxes is hindered.

Article 27(1) of the Constitution of the Republic of Korea; Article 11(1)3 of the Framework Act on National Taxes; Article 7-2 subparag. 1 and 2 of the Enforcement Decree of the Framework Act on National Taxes

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Doz., Counsel for plaintiff-appellant)

Plaintiff (Law Firm Woo, Attorneys Im Tae-soo et al., Counsel for the plaintiff-appellant)

Director of the District Office

Seoul High Court Decision 2013Nu29355 decided June 10, 2014

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. Article 11(1)3 of the Framework Act on National Taxes provides, one of the grounds for service by registered mail, “where a person prescribed by Article 10(4) fails to serve a document at a place where the document is to be served, such as where the document is served by registered mail but the document is returned because of the absence of the recipient, etc.” Article 7-2 of the Enforcement Decree of the Framework Act on National Taxes provides, “Where it is deemed difficult to serve a document by registered mail because the document was served by registered mail but the addressee’s absence is confirmed,” and Article 7-2 of the Enforcement Decree of the Framework Act on National Taxes provides, “Where it is deemed difficult to serve a document by the due date for payment due to the return of the document by registered mail” under Article 11(1)2 of the same Act.

Considering the purport of the service by public notice system under Article 11 of the Framework Act on National Taxes and the fact that the permission of service by public notice may excessively infringe the right to a trial under Article 27(1) of the Constitution by reason not attributable to a taxpayer, etc., it is reasonable to interpret that “the absence of the recipient” under Article 11(1)3 of the Framework Act on National Taxes and Article 7-2 subparag. 1 and 2 of the Enforcement Decree of the Framework Act on National Taxes is limited to cases where a taxpayer deserts from the place where the existing service is to be made for a long time and where the exercise of the right to impose taxes is hindered (see Supreme Court Decision 98Du18916, Oct. 6, 200).

2. According to the evidence duly admitted by the court below, the following facts are revealed: ① the Defendant decided to pay the transfer income tax for the year 2009 for the Plaintiff on March 2, 201, and then sent the tax notice by registered mail two times in Gangseo-gu Seoul (hereinafter omitted) which is the Plaintiff’s domicile; ② The Defendant’s public official in charge visited the Plaintiff’s domicile on May 6, 201 and May 9, 201 and intended to issue the tax notice directly, but the Plaintiff’s official in charge visited the Plaintiff’s domicile to deliver the tax notice. However, even if the Plaintiff’s name was negative and he did not respond to the address, the Plaintiff’s address was attached to the address. ③ The Plaintiff’s address was a multi-family house with several households residing in the Plaintiff, but the number was not stated, and even if the notice was attached, it is difficult to view that the Plaintiff left the address for a long time.

Nevertheless, on May 19, 201, the lower court deemed that the Defendant’s service by public notice on the grounds of “the absence of the recipient” constituted lawful service meeting the requirements, and thus, that the service of the notice became effective on June 2, 201, which was 14 days after June 2, 201, the Plaintiff filed an objection and the petition for adjudication after the lapse of 90 days from June 2, 201, is unlawful, and the lawsuit of this case based on which it was filed is unlawful. In so doing, the lower court erred by misapprehending the legal doctrine on the requirements for service by public notice, thereby adversely affecting the conclusion of the judgment.

3. Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Shin (Presiding Justice)