Seoul Administrative Court 201Gudan20478 ( October 14, 2012)

Cho High Court Decision 201Do0385 ( October 16, 2011)

Inasmuch as the address is not clear, service by public notice is legitimate.

Even if the resident registration card is based on the resident registration card, and the address is not clear, even if the tax notice was served by public notice, it constitutes legitimate service, and even if there is a defect in the disposition of the transfer value calculated by the standard market price, the actual transfer value can be clarified by accurate investigation. Therefore, the defect cannot be seen as null

Article 11 of the Framework Act on National Taxes

2012Nu8795 Revocation of Disposition of Imposing capital gains tax

private XX

The Director of Gangnam District Office

Seoul Administrative Court Decision 2011Gudan20478 decided February 14, 2012

July 11, 2012

July 25, 2012

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance is revoked. The defendant's disposition of imposition of capital gains tax of 000 won on December 16, 1995 against the plaintiff on December 16, 1995 is confirmed as invalid.

1. Details of disposition;

From March 15, 1943, the Plaintiff completed the registration of transfer of ownership in the name of the Kimsung-gun, Hong-gun, Hongsung-gun, Hongsung-si on the ground of sale and purchase as of August 31, 1991, the receipt of No. 00000 on August 31, 1991, and April 5, 1971, with respect to the same Ri 000-3 square meters (hereinafter referred to as the “instant land”). The Plaintiff did not report the transfer income tax regarding the transfer of ownership of the instant land.

On December 16, 1995, the Defendant considered the Plaintiff on August 31, 1991, the date of receipt of the registration, as the transfer date, and determined KRW 000 as the standard market price pursuant to the provisions of the Income Tax Act and imposed the transfer income tax for the year 1991 (hereinafter “instant disposition”).

[Grounds for recognition] The written evidence Nos. 5 and 6 and the whole purport of the pleading

2. Whether the instant disposition is null and void

A. The plaintiff's assertion

1) At the time of the instant disposition, the Plaintiff was unable to receive a tax payment notice following the instant disposition, since the Plaintiff’s domicile was not fixed at the time of the instant disposition and the contact with his family was cut off. At the time, the Plaintiff’s domicile did not fall under the requirements for service by publication because the Plaintiff’s domicile was in Gangnam-gu Seoul, Seoul, and the Plaintiff did not fall under the case where his domicile was unknown. As such, service by publication is inappropriate. The instant disposition is invalid since

2) As the Plaintiff transferred the instant land to KimA on April 5, 1971, to KRW 000, the actual transfer value is KRW 000. The instant disposition that was imposed by setting the transfer value as the standard market price in 1991 is null and void.

(b) The attached Form of relevant statutes is as follows.

C. Determination

1) Whether the service of tax payment notice is illegal or not

Article 8(1) of the Framework Act on National Taxes (amended by Act No. 5189, Dec. 30, 1996; hereinafter the same) provides that documents specified by this Act or other tax-related Acts shall be served on the domicile, residence, place of business or office of the holder of the title (referring to the person designated as the recipient of the documents; hereinafter the same shall apply). As to the method of service of documents, Article 10(1) of the same Act provides that delivery shall be made by mail, and Article 10(2) of the same Act provides that service of documents related to notice of tax payment, demand, disposition on default, or government order under tax-related Acts shall be made by registered mail. According to Article 11(1) of the same Act, where a person subject to service of documents falls under a case where his domicile or place of business is not clear (Article 11(3)), service of documents under Article 8 shall be made by public notice after the lapse of 10 days from the date of announcement of the summary of the documents.

Meanwhile, in an administrative litigation seeking confirmation of invalidity of an administrative disposition by asserting that the administrative disposition is null and void as a matter of course, the Plaintiff is liable to assert and prove the grounds for invalidity (see, e.g., Supreme Court Decision 2009Du3460, May 13, 2010). In a case where the Plaintiff seeks confirmation of invalidity of a tax disposition due to improper delivery of a tax notice, the Plaintiff must prove that the tax

It is insufficient to recognize that the notice of tax payment pursuant to the instant disposition is unlawful solely with the evidence submitted by the Plaintiff. Rather, according to the Plaintiff’s evidence Nos. 3 and 7’s statement, the Plaintiff’s address at the time of the instant disposition is deemed to be the fact that the Plaintiff’s domicile was 00-15, Gangnam-gu, Seoul, despite being aware of the fact that the Plaintiff’s domicile was 00-15, but did not contact with his/her family at the time of the instant disposition. As such, even according to the resident registration card as stipulated in Article 11(1)3 of the Framework Act on National Taxes and Article 7 of the Enforcement Decree of the same Act,

2) Whether the calculation of capital gains is invalid based on the standard market price

Article 23 (4) of the Income Tax Act (amended by Act No. 4520 of Dec. 8, 1992) stipulates that the transfer price of land shall be the standard market price at the time of transfer, but in such cases as prescribed by the Presidential Decree, it shall be based on the actual transaction price. Article 170 (4) 3 of the Enforcement Decree of the Income Tax Act (amended by the Presidential Decree No. 13540 of Dec. 31, 1991) stipulates cases where the transferor can confirm the actual transaction price at the time of acquisition and transfer by documentary evidence submitted at the time of the preliminary return or final return on transfer of assets (in case of money to be based on the actual transaction price, it seems that there is no relation

According to Gap evidence No. 6-1, the fact that KimA was judged in favor of the plaintiff on April 5, 1971, in the Daejeon District Court Red support 90 Gahap1806, for the registration of transfer of land ownership, on the ground that KimA purchased the land of this case from the plaintiff on April 5, 1971, but there is no evidence to deem that the transferor could have confirmed the actual transaction value at the time of acquisition and transfer by documentary evidence submitted at the time of preliminary return of

Even if the actual transfer value of the instant land is recognized as 000 won and the transfer value is assessed as the standard market price and there is a defect in the instant disposition, it is insufficient to say that there is an illegality in the disposition in order to make the administrative disposition null and void as a matter of course. The defect is significant in violation of the laws and regulations, and it should be objectively obvious. The defect is not clear since the Defendant’s actual transfer value can clarify the exact investigation.

3. Conclusion

The appeal is dismissed.