Seoul Administrative Court 2013Guhap52506 ( October 10, 2013)

2012west 4384 ( November 19, 2012)

A lawsuit filed by a tax agent after the lapse of 90 days from the date of service of the written decision, because the authority of the tax agent includes the right to receive the written decision.

The authority of a tax agent is naturally included in the right to receive a written decision, and it can be served on a person who can be classified as an employee or other employee of the tax agent. Thus, a lawsuit filed by a person corresponding thereto after 90 days from the date of receipt of the written decision on the trial is unlawful.

2013Nu50212 Revocation of disposition of imposing capital gains tax

The AA

The Director of the sericultural Tax Office

Seoul Administrative Court Decision 2013Guhap52506 decided October 10, 2013

May 22, 2014

May 29, 2014

1. Revocation of a judgment of the first instance;

2. The instant lawsuit shall be dismissed.

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

1. Details of the disposition;

A. As to the ○○○○-si ○○○-dong 261-3, 300-1, 302-4, 302-7, 259-10, and the former ○○-dong 259-10, and the former ○○-dong 65-1 or part of the shares thereof (hereinafter referred to as “instant land”), the ○○ Corporation (hereinafter referred to as “the outside works”) completed the registration of ownership transfer from the Plaintiff on the ground of “land expropriation on November 27, 2009.”

B. Prior to the rectification, the head of Song District Tax Office (the defendant of this case was corrected from "the head of Song District Tax Office" to "the head of Song District Tax Office on May 15, 2014 according to the defendant's correction decision of this court. Under the following circumstances, "the defendant" was referred to as "the defendant without distinguishing them for convenience) has completed the registration of ownership transfer on the land of this case on December 30, 2009, on the ground that the plaintiff did not report the transfer income tax even though the non-party Corporation completed the registration of ownership transfer on December 30, 209, the plaintiff did not report the transfer income tax. On March 1, 2012, the plaintiff calculated the amount of ○○○○○○○ as the transfer value, and imposed the transfer income tax of this case 84,025,950 won (hereinafter

C. The Plaintiff filed an objection on the instant disposition but dismissed, the Plaintiff again appointed a tax accountant ParkB [the address of the office: ○○○○○-dong ○○○○○○○○-dong ○○○○○○-dong ○○○○○○○] as his agent and filed a petition for a trial seeking revocation of the instant disposition with the Tax Tribunal around October 4, 2012.

D. On November 19, 2012, the Tax Tribunal rendered a decision of dismissal on the ground that the Plaintiff filed an objection after the lapse of 90 days from March 8, 2012 on which the notice of tax payment regarding the instant disposition was served on the Plaintiff. On November 21, 2012, the said decision was served by means of registered mail at the domicile of the said ParkB’s office, i.e., “(c)” with the “tax accountant ParkBB” indicated as the Plaintiff’s agent, and at the same time, this decision was received at the said domicile.

[Ground of recognition] The evidence Nos. 1 through 2, Eul Nos. 1 through 6 (the number with a tentative number shall be omitted), and the purport of the whole pleadings

2. Judgment on the defendant's main defense

A. The defendant's assertion

On November 21, 2012, the Plaintiff was notified by the Tax Tribunal of the decision of inquiry on the instant disposition.

Since the instant lawsuit was filed on April 5, 2013, which was 90 days after the 90th day of the filing, the instant lawsuit is unlawful as it exceeds the filing period.

B. Determination

(1) The main text of Article 18(1) of the Administrative Litigation Act provides that "a revocation lawsuit may be instituted without going through an administrative appeal against the disposition." The proviso provides that "this shall not apply to cases where there is a provision that a revocation lawsuit cannot be instituted without going through an administrative appeal against the disposition." In addition, according to Article 56 of the former Framework Act on National Taxes (amended by Act No. 11604, Jan. 1, 2013; hereinafter "Framework Act"), an administrative litigation against an illegal disposition, which is a disposition under the Framework Act on National Taxes, may not be instituted without going through a request for examination or adjudgment under the Framework Act on National Taxes and its decision (Article 18(2)). Under Article 59 of the Framework Act on National Taxes, an administrative litigation may be filed within 90 days from the date on which the decision on the request for examination or adjudgment is notified (Article 18(3) main sentence), and the above period is a peremptory term (Article 59).

On the other hand, under Article 8 (1) of the Framework Act on National Taxes, documents prescribed by the Framework Act on National Taxes shall be served on the domicile, temporary domicile, place of business or office of the designated person (referring to the person designated as the recipient of the documents), and under Article 10 of the Framework Act on National Taxes, documents under the above Article 8 shall be served by means of delivery, mail or electronic delivery (Article 10). In cases where documents relating to notification, demand and disposition of tax payment or an order issued by the Government under tax-related Acts are served by mail, they shall be served by registered mail (main sentence of paragraph (2). In such cases, if a person to be served at the place to be served is not present at the place to be served, documents may be served on his/her employees and other employees or persons living together

(2) In a case where a person to receive documents, such as a person liable for duty payment, etc., who is the other party to a tax disposition, has expressly or explicitly delegated the right to receive mail and other documents to the other person, such delegated person shall be deemed to have lawfully served the documents upon the person to receive the documents. The delegated person shall be deemed not to have been an employee of the delegating person or a person living together (see, e.g., Supreme Court Decisions 2000Du1164, Jul. 4, 2000; 2010Da108876, May 13, 2011).

However, according to the facts and evidence acknowledged earlier, it is reasonable to view that the authority of ParkB, an agent of the plaintiff, is naturally included in the authority of the Director of the Tax Tribunal to receive the judgment decision, and that thisCC, which received the said judgment decision at the address of the above office of ParkB, constitutes an employee of ParkB and other employees of ParkB as stipulated in the former part of Article 10(4) of the Framework Act on National Taxes, and thus, has the authority to receive the said judgment decision instead of ParkB, and there is no other counter-proof.

Therefore, in light of the above legal principles and the aforementioned circumstances comprehensively with the pertinent provisions related to pinin, the said decision on November 21, 2012, which received the said decision, was lawfully served on the Plaintiff. However, the fact that the Plaintiff filed the instant lawsuit on April 5, 2013 after the lapse of 90 days from the said decision, is apparent in the record, and thus, the instant lawsuit was filed after the lapse of the period for filing the lawsuit, and is deemed unlawful.

(3) Therefore, the defendant's above main defense is justified.

3. Conclusion

Therefore, the lawsuit of this case is unlawful and dismissed, and the judgment of the court of first instance is different from this conclusion, and it is so decided as per Disposition by the assent of all participating Justices.