Cho-2014-China-5121 ( October 16, 2014)

Inasmuch as the instant tax notice was sent by means of registration, it shall be deemed that the notice was delivered to the addressee at that time, barring special circumstances, such as the same time.

Although the Plaintiff asserted that the notice of capital gains tax imposed in 2001 and 2011 was not received, in light of the purport of the relevant provisions, such as the Postal Service Act, it shall be deemed that the delivery was made to the addressee at that time, barring special circumstances, such as the return of the mail where the mail was sent by means of registration.

Article 8 (Service of Documents)

2015Guhap7819 Action for the nullification of a disposition of imposition of capital gains tax

KimA

BB Director of the Tax Office

May 10, 2016

June 28, 2016

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The Defendant’s imposition of capital gains tax of KRW 62,256,210 against the Plaintiff as of March 1, 2001 and KRW 111,951,320 as of March 6, 2001, imposition of capital gains tax of KRW 128,220 as of March 6, 201, imposition of capital gains tax of KRW 9,737,410 as of February 4, 201, and imposition of capital gains tax of KRW 9,737,410 as of February 4

1. Details of the disposition;

A. From April 1997 to August 200, the Plaintiff did not pay the transfer income tax even after the auction of each of the real estate held by the Plaintiff, Dadong 290-5 Dadong 4, 290-5 Dadong 276-2 and 5 other real estate owned by the Plaintiff, and Dadong 290-4 and 1 other real estate owned by the Plaintiff. Accordingly, the Defendant issued a tax notice (hereinafter referred to as “1 tax notice”) to the Plaintiff on March 1, 2001, respectively.

B. As the Plaintiff did not pay the said capital gains tax, on March 22, 2010, the public auction procedure for the real estate D, 573-1, CC, owned by the Plaintiff was conducted on March 22, 201 for the collection of the delinquent tax amount. As a result, upon the occurrence of capital gains tax, the Defendant issued a tax payment notice (hereinafter referred to as “second tax payment notice”) to the Plaintiff on January 3, 201 after imposing capital gains tax of KRW 9,797,410 on the Plaintiff on January 3, 201, but sent the tax payment notice to the Plaintiff on March 20, 201 (hereinafter referred to as “each disposition of this case”).

[Reasons for Recognition] Unsatisfy, Gap evidence 1, Eul evidence 1, and the purport of whole pleadings

2. Whether each of the dispositions in this case is effective

A. The plaintiff's assertion

The Plaintiff was unable to receive the first and second tax payment notice (hereinafter “each tax payment notice of this case”) because the Plaintiff resided in Gangwon-do from the middle half of the 1990s and did not reside in Dadong 376-8 at the time of each disposition of this case, which was resident registration. Therefore, the instant disposition is invalid due to the defect in the service of tax payment notice.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

1) Whether a notice of tax payment was served

An administrative act requiring notification to the other party is effective only when it is objectively viewed and given to the other party under the condition that the other party can use both sides. The arrival as an effective requirement of an administrative disposition is not necessary to the other party in reality and it is sufficient that the other party can use both sides (see, e.g., Supreme Court Decision 88Nu940, Jan. 31, 1989). In addition, according to Article 8(1) of the Framework Act on National Taxes (amended by Act No. 6782, Dec. 18, 2012), the document under the tax law provides that the document shall be served on the domicile, residence, place of business or office of the nominal party. Here, the address refers to a place that serves as a basis for life in principle, but it includes the temporary domicile under Article 21 of the Civil Act or the registered domicile of the other party according to his/her intention, barring any special circumstances, such as the delivery of the registered mail to the addressee at the time of delivery (see, e.g., Supreme Court Decision 198Du168.).

Based on the above legal principles, it is reasonable to view that the first tax notice was sent around March 2001 and was legitimately delivered to the Plaintiff around that time, comprehensively taking account of the following circumstances acknowledged by comprehensively taking account of the respective descriptions of evidence Nos. 1, 7, and 8 and the purport of the entire pleadings as to the instant case.

① On March 2, 1998, the Plaintiff filed a move-in report on each resident registration with JG H-dong 5-51, JJJ-dong 442-15, on September 15, 1998, and DD 376-8, on November 15, 2000. On June 26, 200, the Plaintiff filed a move-in report with LL-dong 767-1, on November 26, 2003.

② On March 2001, the Defendant appears to have sent each of the instant tax payment notices to the Plaintiff as the place where the Plaintiff’s domicile was served to the place where the Plaintiff’s domicile was served by registered mail, and there was no confirmation to deem that the return or other impossible delivery was later processed

③ Although the Plaintiff resided in Gangwon-do, which is not the place of resident registration, the Plaintiff is not specifically identified in the place where the Plaintiff actually resided, and the Plaintiff’s certificate of deposits without passbook or detailed statement of deposit transactions, etc. submitted by the Plaintiff cannot be sufficient data to verify the

④ As alleged by the Plaintiff, if the Plaintiff resided in Gangwon-do since the mid-1990s, it would be easy for the Plaintiff to move his/her registered domicile to Seoul orCC from the date of 1998 to 2003, apart from his/her family members.

⑤ Since the number of real estate owned by the Plaintiff was put up for auction at a similar time, it seems that the Plaintiff could have anticipated that taxes will be imposed upon changes in ownership of real estate.

2) Whether a notice of tax payment was served

Article 11(1) of the former Framework Act on National Taxes (amended by Act No. 11604, Jan. 1, 2013) provides for cases where an address or a place of business is located overseas and it is impracticable to serve documents under tax law, such as a tax notice, by public notice (Article 11(1)), or where the address or place of business is not clearly identified (Article 11(1)2).

According to the purport of the written evidence No. 1, No. 1, and No. 1 and all pleadings, the second tax notice was sent to the Plaintiff on January 3, 201, but was returned on the ground that the address was unknown on January 10, 2011, and the Defendant returned on the same ground and served on January 13, 201 and January 18, 201 thereafter, and the second tax notice was sent by public notice. Thus, the Defendant’s second tax notice by public notice is lawful, and therefore, it is reasonable to deem that the second tax notice by public notice by public notice was effective at the expiration of 14 days after January 20, 201.

3) Sub-determination

Therefore, since each tax notice of this case is judged to have been lawfully served on the Plaintiff, the Plaintiff’s assertion that each tax notice of this case was not served on the Plaintiff is groundless.

3. Conclusion

Thus, the plaintiff's claim of this case is dismissed as it is without merit.