Cho High Court Decision 2010Du2589 (No. 13, 2010)

To recognize the receipt of a tax payment notice, a tax payment notice is lawful.

Since the fact that the plaintiff sent a tax notice to the plaintiff's domicile and the plaintiff's friendship residing together with the plaintiff at the time can be recognized that the plaintiff's domicile received a tax notice at the plaintiff's domicile, the tax notice is legitimate, and since the business registration is a joint name and the plaintiff's name does not have any apparent defect in the reported act itself, the argument that the plaintiff

2011Guhap12894 Invalidity of a disposition imposing income tax

Park XX

Head of Seodaemun Tax Office

September 6, 2011

November 3, 2011

1. The plaintiff's claim is dismissed.

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

The Defendant confirmed that a collection disposition of KRW 11.108,466 on September 11, 2009 against the Plaintiff is null and void.

1. Details of the disposition;

A. From March 30, 2008 to April 9, 2009, the Plaintiff is registered as an entrepreneur of a joint business who engages in the new construction and sales business of a house under the trade name of the Eunpyeong-gu Seoul Metropolitan Government 000-0 from 000 to 2009.

B. On May 24, 2009, the Defendant notified the Plaintiff to pay the global income tax for the year 2008 plus 11,108,466 won (=108,466 won + 128,460 won (hereinafter referred to as the “instant disposition”) on September 11, 2009 on the ground that “the Plaintiff did not pay the final return of global income tax for the year 2008 (hereinafter referred to as “the instant return”).

[Ground of recognition] Unsatisfy private theory, entry of evidence Nos. 1, 2, and 6, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The instant disposition is null and void because the following defects exist, and such defects are serious and apparent.

① The Plaintiff was unable to receive a tax notice of the instant disposition.

② The Plaintiff did not operate the instant place of business, but, upon Nonparty 1’s request, leased only the name of the business operator of the instant place of business to 0B and actually operated the instant place of business, and the Plaintiff did not receive any business income. Therefore, the instant disposition based on a different premise is unlawful since it violated the principle of substantial taxation.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

1) Determination on the first argument

Article 8(1) of the former Framework Act on National Taxes (amended by Act No. 911, Jan. 1, 2010) provides that documents prescribed by this Act or other tax-related Acts shall be served on the domicile, temporary domicile, place of business or office of the person in whose name the documents are served, and Article 10(1), (2) and (4) of the same Act provides that service of the documents shall be made by delivery, postal service, or electronic delivery, and by registered mail if the documents are served by mail, they shall be served by registered mail, and if the person to be served is not present at the place to be served, documents may be served on the person to be served as his/her employee and other employees or a person living together

In full view of the purport of the argument as to the instant case’s health room and evidence Nos. 3, the Defendant sent a tax notice on the instant disposition to OO-dong 00-00 O apartment 000, the Plaintiff’s domicile, by registered mail (registration number of 000000), and the Plaintiff’s friendship, who was residing with the Plaintiff at the time, received the said tax notice at the Plaintiff’s domicile on October 9, 2009. Accordingly, it is reasonable to deem that the Plaintiff received the said tax notice on October 9, 2009. Accordingly, the Plaintiff’s allegation in this part is without merit.

2) Determination on the second argument

A) If the ownership of the income, profit, property, act, or transaction subject to taxation is merely nominal and there is another person to whom it actually belongs, the person to whom it actually belongs shall be deemed the person to whom it actually belongs (Article 14 of the Framework Act on National Taxes). However, the fact that the ownership of the transaction subject to taxation is merely the name and another person to whom it actually belongs, bears the burden of proof (see, e.g., Supreme Court Decision 84Nu68, Jun. 26, 1984).

As to the instant case, from March 30, 2008 to December 31, 2008, the business title holder of the instant business establishment from March 30, 2008 to December 31, 2008, and the fact that the instant case was rendered in the name of the Plaintiff and Jeon A, the Plaintiff must prove that only the Plaintiff merely lent the name is a business title holder in the form of the instant business establishment. In light of the following circumstances, there is insufficient evidence to acknowledge that the Plaintiff is merely a business title holder in the form of the instant business establishment, and there is no other evidence to prove otherwise.

Rather, in full view of the statements in Eul evidence No. 5 and witness WhiteB's testimony, the plaintiff and his cohabitant, together with all the arguments, shall carry on the business of newly constructing and selling multi-household housing on the ground of the purchase of the land of Eunpyeong-gu Seoul Metropolitan Government (hereinafter referred to as " XX Dong") 00-00 and 000-0. On December 13, 2007, after purchasing the land of XX 00-00-0 under the name of the plaintiff, the registration of ownership transfer under the name of the plaintiff on December 27, 2007, the land of Kim Dong 108-4 was purchased under the joint name of the plaintiff and Jeon Dong 13, 2007, and then completing the registration of ownership transfer under the joint name of the plaintiff and Jeon Dong 108-7, and then it is difficult to recognize the fact that the plaintiff transferred the land of this case to the plaintiff on December 7, 2007.

Therefore, the plaintiff's assertion on different premise is without merit.

B) Even if the Plaintiff is only the nominal lender who merely lent the name of business registration, the instant sentence cannot be deemed null and void due to a grave and apparent defect for the following reasons, and thus, the instant disposition ordering the payment of the amount of tax finalized by it cannot be deemed unlawful. Therefore, the Plaintiff’s above assertion is without merit.

Generally, a tax assessment conducted on a person who does not have any factual relation such as legal relations or income or act which is subject to taxation is significant and apparent, but where there are objective reasons to believe that it is subject to taxation with respect to any legal relations or factual relations which are not subject to taxation, it cannot be said that it is clear even if the defect is serious, and thus, it cannot be said that it is apparent that it is subject to taxation, and thus, it cannot be deemed unlawful as a matter of course (see Supreme Court Decision 2001Du7268, Sept. 4, 2002). In addition, global income tax is a tax based on the method of filing a return, and as a matter of principle, it becomes definite that the taxpayer is liable to pay taxes in a specific manner by setting a tax base and amount. Thus, unless the taxpayer’s filing a return becomes void automatically due to a grave and apparent defect or there is no illegality in the collection disposition itself, it cannot be deemed unlawful to collect the amount of tax finalized by an act of declaration. Here, it should be determined as to whether the act of declaration becomes invalid and rationally and rationally unlawful.

In accordance with these legal principles, the following circumstances, which are considered to be comprehensively taken account of the overall purport of arguments in the statement Nos. 5 and 6 as to the instant case, namely, (i) the Plaintiff and the previous AA business registration was completed with respect to the instant business establishment; and (ii) whether the Plaintiff merely constitutes the nominal business operator, and whether the Plaintiff did not operate the instant business establishment, can only be identified after an accurate investigation into the facts. (ii) Furthermore, according to the data (No. 5) submitted to the Defendant at the time of filing an application for the registration of the instant business establishment, the sales contract was concluded with respect to each of the above purchased land under the name of the Plaintiff and the previousA, and the contract was concluded for the transfer of ownership and the construction of new housing, and the certificate of personal seal issued by the Plaintiff himself was attached to the instant report filed in the name of the Plaintiff. (iii) In full view of the following circumstances, even if the Plaintiff merely was the nominal business operator, it cannot be deemed that the instant reporting act does not have any apparent defect, and thus, cannot be deemed to have any error in the instant disposition itself.

3. Conclusion

The plaintiff's claim is dismissed on the ground that it is without merit.