Whether proof of a tax payment notice is responsible for the service

When the notice of this case is served on the Plaintiff’s resident registration address, the Plaintiff did not actually reside in the Plaintiff’s domicile, and the tax authority must prove that it was difficult to deem that the Plaintiff delegated his/her right to receive service to residents, etc. at his/her domicile.

Articles 8 and 10 of the Framework Act on National Taxes, Articles 96 and 165 of the former Income Tax Act

2017Gudan3650 Revocation of Disposition of Imposing capital gains tax

AA

BB Director of the Tax Office

August 13, 2018

September 12, 2018

1. On October 4, 2001, the Defendant confirmed that the imposition disposition of KRW 47,530,060 and penalty tax of KRW 4,781,722 against the Plaintiff was all null and void.

2. The costs of the lawsuit are assessed against the defendant.

Cheong-gu Office

The same shall apply to the order.

1. Details of the disposition;

A. On April 16, 1988, the Plaintiff newly built and acquired residential facilities, education and research facilities, and housing buildings with a total floor area of 1,019.46 square meters on each of the above lands (hereinafter referred to as “instant buildings”) on each of the above lands, after acquiring 140-262 square meters wide and 256 square meters wide and same on July 9, 1996, respectively. On November 5, 1997.

B. On October 12, 200, the Plaintiff sold and transferred the instant building, etc. to Nonparty 1, 200, to Nonparty 2, who had not reported the transfer income tax, while selling and transferring it through the auction procedure (hereinafter “instant auction procedure”).

C. On March 6, 2001, the director of thez tax office issued a notice of non-payment of capital gains tax of KRW 6,005,463 on March 6, 2001 (hereinafter referred to as "non-payment notice"), but on October 4, 2001, he/she again issued a notice of increase in capital gains tax of KRW 47,530,060 and additional tax of KRW 4,781,722 (hereinafter referred to as "the disposition in this case"), by calculating capital gains as shown in the attached Table, and then issued a notice of tax payment in this case (hereinafter referred to as "tax payment notice").

D. Meanwhile, the National Tax Service and its affiliated organizations were amended by Presidential Decree No. 18256 on January 29, 2004, and the BB Tax Office was newly established on April 1, 2004, and the right to taxation on the above transfer was transferred from the zz tax office to the defendant (hereinafter “the defendant, regardless of whether before or after the above transfer of business”).

2. Whether the instant disposition is void as a matter of course

A. The parties' assertion

1) Delivery of a tax notice

The plaintiff asserts that the tax payment notice of this case was not lawfully served on the plaintiff. The defendant asserted that the tax payment notice of this case was not effective on the plaintiff. The defendant asserted that the tax payment notice of this case should be legally served on the plaintiff, since there is no evidence to deem that the registered mail of this case was sent to the plaintiff's domicile

(2) inclusion of necessary expenses

The plaintiff did not include 751,500,000 won for the construction of the building of this case in the necessary expenses and calculated the transfer income amount of the building of this case. This assertion is significant and apparent. Accordingly, the defendant asserts that the grounds asserted by the plaintiff do not constitute grounds for invalidation of the disposition imposing transfer income tax.

B. Determination

First, we examine whether the instant tax notice was served on the Plaintiff.

1) In a case where a tax payment notice has not been served lawfully in a tax imposition disposition, the tax imposition disposition is void as a matter of course (see, e.g., Supreme Court Decisions 2009Du20380, Sept. 8, 2011); Inasmuch as the delivery of a tax payment notice and the delivery by mail are essential premise for a taxpayer or a person who has a certain relationship with the taxpayer, the delivery of a tax payment notice and the delivery by mail are essential for the practical receipt of the details of the tax disposition, even if the taxpayer already knows the details of the tax disposition, the tax imposition disposition cannot be deemed unnecessary (see, e.g., Supreme Court Decisions 96Nu5094, May 23, 1997; 2003Du13908, Apr

2) Meanwhile, the burden of proving that a tax notice was not served in a lawsuit seeking confirmation of invalidity of a tax imposition disposition on the ground that a tax notice was not served (see, e.g., Supreme Court Decision 2009Du3460, May 13, 2010), and where a tax payment notice was served by registered mail, barring any special circumstance, it can be deemed that the notice was served on the addressee around that time (see, e.g., Supreme Court Decisions 92Nu13127, Dec. 11, 1992; 2014Du46027, Apr. 9, 2015; 2014Du46027, if the addressee or his/her family members did not actually reside in the resident’s domicile, it is difficult to deem that a tax payment notice was delegated to the resident’s right to receive the resident’s domicile, and if the recipient did not actually reside in the resident’s domicile, it cannot be deemed that the tax office’s notice reached 19797Du3959.

3) As to whether the instant tax payment notice was lawfully delivered to the Plaintiff in accordance with the aforementioned legal principles, comprehensively taking account of the purport of the entire pleadings in the statement No. 8-1 through No. 4, the facts that the Plaintiff, the Plaintiff’s wife, and two son’s family members (hereinafter collectively referred to as “Plaintiff’s family members”) were resident registration in Seoul BB-dong 140-262(hereinafter referred to as “the instant building”) from January 15, 2001 to January 5, 2004. The circumstance that the Defendant can recognize that the instant tax payment notice was sent to the Plaintiff’s domicile by registered mail around October 4, 201, the date of the instant disposition, and that the Defendant could not directly prove that the instant tax payment notice was returned.

4) However, in light of the following circumstances, it is sufficient to recognize that the Plaintiff’s family members did not delegate the authority to receive the tax payment notice, etc. to the residents, etc. of the instant building on October 17, 2000, which is the date of the issuance of the delivery order on the instant building, etc., which is the date of October 12, 200 when the instant building was sold during the instant auction procedure or at any delay, and delivered the instant building to Park○, etc. on October 17, 200, which is the date of the issuance of the delivery order on the instant building, after leaving the instant building, etc., and did not report the transfer of resident registration, but did not actually reside in the instant building, and the Plaintiff did not delegate the authority to receive the tax payment notice, etc. to the residents, etc. of the instant building.

On October 12, 200, which was from October 4, 2001, the disposal date of the instant building, etc., to around one year prior to the date of the instant disposition, the instant building was already sold to Park○ through the instant auction procedure, and on October 16, 200, Park○○ was issued a delivery order on October 16, 200 by requesting for delivery order x x x x x x x x x x x x x x x x x the Plaintiff’s family members received delivery order on October 17, 200. Moreover, there was no circumstance that there was a dispute over the possession of the instant building, etc. after the date of the said sale between Park○ and the Plaintiff’s family members.

(B) In light of the fact that the Defendant served the notice of non-payment to the Plaintiff by means of service by public notice, the Defendant’s written notice of non-payment was served by registered mail around March 6, 2001, which is the date of notice, but the Plaintiff’s family did not reside in the instant building, but did not delegate the Plaintiff’s right to receive service to the residents of the instant building, etc., and thus, it appears that the notice was returned without payment (the Defendant also appears to have resided in the local area without transferring his resident registration from the preparatory document dated August 1, 201 to the Plaintiff’s family on March 6, 201).

In the auction procedure of this case, the ownership of the building of this case would be lost, and immediately thereafter, the plaintiff's family, who moved from the building of this case, would have been living in the building of this case before the notice of tax payment of this case was sent.

As seen above, the Plaintiff appears not to have delegated the authority to receive postal items to residents of the instant building until the date of sending the notice without notice. However, in light of the fact that the Civil Execution Act adopts the principle of extinction, etc., it is difficult to deem that the Plaintiff delegated the authority to receive postal items, etc. to residents of the instant building, who reside in the instant building after the date of sending the notice without notice, from the date of delivering the notice to the date of sending the notice.

On May 31, 2007, ParkM, who is the plaintiff's wife, presented an application for revocation of the disposition of this case to the defendant on May 31, 2007. However, in the course of explaining the circumstances before and after the disposition in the above application for revocation ex officio, ParkM stated that all of the plaintiff's family members left the building immediately after the building of this case was sold at the auction procedure of this case. In addition, ParkM appears in this court as a witness, and then the plaintiff left the building of this case after having been sold at the auction procedure of this case, two children were friendly, and the witness was able to live in the house of this case. In light of the above, ParkM sought ex officio revocation of the disposition of this case for reasons unrelated to the delivery of the tax notice of this case at the time of the above application for revocation ex officio, but it is consistent with the plaintiff's testimony even if the plaintiff's family member left the above building after the removal of the building of this case from the above building of this case, and considering the plaintiff's testimony of M before the time.

㉳ 원고 가족은 모두 2004. 1. 5. 이 사건 건물에서 무단전출을 이유로 주민등록이 직권으로 말소되었다. 위 직권 말소는 원고 가족이 장기간 이 사건 건물에서 거주하지 아니한 것을 반영한 조치로 보인다.

㉴ 원고가 이 사건 납세고지서 발송일 무렵 주민등록상 주소지인 이 사건 건물로 발송되었던 다른 우편물 등을 수령하였다고 볼 만한 사정도 나타나지 아니한다.

5) As such, insofar as it is recognized that the Plaintiff only carried out a moving-in report on the instant building at the time of the delivery of the instant tax notice and that the Plaintiff could not be deemed to have delegated the right to receive the tax payment notice to the residents of the said building, the said tax payment notice cannot be presumed to have been lawfully served on the Plaintiff solely on the ground that the instant tax payment notice was sent by registered mail pursuant to the legal principles of the aforementioned Supreme Court Decision 97Nu8977, and the Defendant must prove that the said tax payment notice was not returned (the above Supreme Court Decision 97Nu8977 Decided the burden of proving that the taxpayer was not served on the Plaintiff in a lawsuit seeking confirmation of the tax imposition disposition on the ground that the taxpayer was not served on the taxpayer, in principle, on the premise that in the process of the lawsuit seeking confirmation of invalidity of the tax payment notice, the Plaintiff’s tax payment notice was not properly served on the Plaintiff’s domicile and that the Plaintiff did not lawfully prove that the tax payment notice was not returned by registered mail (the Plaintiff’s submission of the tax payment notice).

3. Conclusion

The plaintiff's claim is reasonable, and it is so decided as per Disposition.