In a case where a public sale disposition was taken on the real estate owned by Company A for the reason that the industrial accident insurance premium for Company A was delinquent, and the tax authority imposed corporate tax and special surtax on deeming that the income accrued from the transfer of assets of Company A due to the public sale, the case holding that the above disposition of imposition should be revoked unlawfully on the ground that the obligation to pay industrial accident insurance premium under the Industrial Accident Compensation Insurance Act, which is collected by the method of report (report) payment, is specifically determined by the act of report (report) by the business operator who is the insured, and the insurance premium report submitted to the Korea Labor Welfare Corporation, is not submitted by the legitimate representative, etc., and thus the obligation to pay industrial accident insurance premium for Company A is not effective, and thus the above disposition of public sale based on the delinquent insurance premium not liable for payment, is null and void, and the proceeds from the public sale,

Articles 65, 67, 73, and 74 of the former Industrial Accident Compensation Insurance Act (amended by Act No. 7049 of Dec. 31, 2003), Articles 9, 59-2(1) and (3) of the former Corporate Tax Act (amended by Act No. 5581 of Dec. 28, 1998)

Dongjin Industry Co., Ltd. (Law Firm Gyeongpyeong, Attorneys Kim Jae-sung et al., Counsel for the plaintiff-appellant)

C. The Head of Saml District Tax Office (Law Firm Sejong, Attorneys Seo Sung-sung et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2008Nu6846 decided August 20, 2010

The part of the judgment of the court below concerning the imposition disposition of corporate tax and special surtax for the business year 199 through 2001 is reversed, and that part of the case is remanded to the Seoul High Court. The remaining appeal is dismissed.

The grounds of appeal are examined.

1. As to the imposition of corporate tax and special surtax for the business year 1998

A. The lower court acknowledged the following facts based on the admitted evidence.

① Around 1998, an industrial accident insurance premium of KRW 2,529,172,160 (hereinafter “instant delinquent insurance premium”) against the Plaintiff’s Korea Workers’ Compensation and Welfare Service was subject to a public auction disposition on ( Address 1 omitted) 592С and 19 lots (hereinafter collectively “first real estate”) owned by the Plaintiff, and the Korea Workers’ Compensation and Welfare Service allocated KRW 454,451,40, the remainder, excluding expenses for disposition on default, from the proceeds of sale, to cover part of the instant insurance premium.

② On April 1, 2002, the Defendant: (a) deemed that income accrued from the transfer of assets to the Plaintiff due to the public sale of real estate No. 1, the Defendant imposed corporate tax and special surtax for the business year 1998.

③ The instant delinquent premium was calculated on the basis of the insurance premium report in 1994 and the insurance premium report in 1995, which was submitted under the name of the Plaintiff’s ○○ Mining Center’s name as “non-party 1,” and was submitted under the name of Nonparty 2 as “non-party 2”. At the time of submitting the insurance premium report in 1993, Non-party 1 was not the Plaintiff’s representative director. From April 18, 1994, Non-party 2, the Plaintiff’s representative director, from around April 18, 1994, did not submit the insurance premium report in 194 and 1995 to the Korea Labor Welfare Corporation, and did not delegate the submission to another person.

④ Meanwhile, around November 10, 1992, the Plaintiff leased the ○○ Mining Center to Nonparty 3, who operated △△ coal mines, and around that time, Nonparty 3 registered its business separately from the Plaintiff and extracted and sold coal at ○○ Mining Center.

⑤ On January 1, 1993, the Plaintiff reported the closure of business, and around April 30, 1993, the Plaintiff suspended all business activities including ○ Mining Center. Nonparty 3, who leased ○ Mining Center from the Plaintiff, also suspended business activities by receiving mine closure countermeasure expenses from the Coal Industry Rationalization Business Bureau around November 12, 1993.

B. Based on such factual basis, the lower court determined that the Defendant’s imposition of corporate tax and special surtax for the business year 198 on different premise should be revoked unlawfully on the ground that the obligation to pay industrial accident insurance premiums under the Industrial Accident Compensation Insurance Act, which is collected by the method of filing a report (report) payment, is specifically determined by the Plaintiff’s report (report) act. The insurance premium report in the year 1993 through 1995 did not have been submitted by the Plaintiff’s lawful representative, etc. and thus, the Plaintiff’s obligation to pay industrial accident insurance premiums is not effective. Therefore, the public sale of the instant 1 real estate based on the delinquent insurance premium that the Plaintiff is not liable to pay, is null and void. Furthermore, if the sales proceeds from the public sale are fully appropriated to the Plaintiff’s delinquent insurance premium and disposition fee for arrears that are not liable to pay

C. Examining the reasoning of the judgment below in light of the relevant legal principles and records, the above judgment of the court below is just and acceptable, and there is no error in the misapprehension of legal principles as to the invalidation of the act of disposing of public sale and reporting industrial accident insurance premiums (report).

2. As to the disposition of imposition of corporate tax and special surtax for the business year 1999 to 2001

A. The lower court acknowledged the following facts based on the admitted evidence.

① The head of the tax office of Thai-si (the Enforcement Rule of the Office Regulation of the National Tax Service and its affiliated agencies succeeded to the Defendant’s authority on July 1, 200; hereinafter the same shall apply) issued a disposition imposing KRW 319,705,860 in total of corporate tax and special surtax for the business year 1994 (hereinafter “the first preliminary disposition”) on the Plaintiff around January 16, 1996; the imposition disposition imposing KRW 209,193,620 in total of corporate tax and special surtax for the business year 1992 (hereinafter “the second preliminary disposition”); the imposition disposition imposing KRW 14,303,550 in the business year 193 (hereinafter “third preliminary disposition”); and the imposition disposition imposing KRW 14,303,50 in the aggregate of corporate tax and special surtax for the business year 194; and the increase in the imposition disposition imposing KRW 12,275,750 in the aggregate (hereinafter “third preliminary disposition”).

② Around May 2, 1997, in order to collect the tax amount imposed as above, KRW 1,662,013,840 (hereinafter “prepaid tax amount”), among the tax amount imposed as above, the public auction disposition was taken against the Plaintiff’s ( Address 2 omitted) with approximately 790.08 square meters, etc. (hereinafter “public auction real estate in 1997”), and the remainder, other than the expenses for disposition on default, was appropriated for the prepaid tax amount in this case.

③ The Defendant: (a) deemed that the said public sale had income from the transfer of assets to the Plaintiff; and (b) imposed corporate tax and special surtax on the Plaintiff during the business year 1997; (c) however, the Plaintiff defaulted from around 1999 to around 2001; and (d) imposed a public sale disposition on the land and the building 1 Dong (hereinafter collectively referred to as “second real estate”) owned by the Plaintiff on the land ( Address 3 omitted); and (d) the remainder, excluding expenses for disposition on default, was partly appropriated for the delinquent tax amount.

④ Accordingly, on April 1, 2002, the Defendant: (a) deemed that the public sale of the real estate No. 2 in the instant case had accrued income from the transfer of assets again to the Plaintiff; and (b) imposed corporate tax and special surtax on the Plaintiff for each business year from 1999 to 2001

⑤ However, while the Defendant served a notice of tax payment on the end of December 195, the Defendant served the notice of tax payment on the last day of December, 1995. However, there was no evidence that at the time, the Defendant attempted to serve the notice by checking whether the Plaintiff’s representative was changed or the address on the Plaintiff’s corporate register was given. In addition, the Defendant served the notice of tax payment by mail, and at the time, the Plaintiff’s representative director, Nonparty 4 was living together with his family in Songpa-gu (Seoul) which is the address on the corporate register, and the Plaintiff’s representative director, Nonparty 4 was living together with his family. However, the mail delivery certificate on each of the above notice of tax payment stated that the “non-party 5” was received by the “non-party 4” as the “non-party 4, Seoul Special Metropolitan City

B. Based on such factual basis, the lower court determined that each of the instant dispositions was null and void on the ground that the Defendant’s inspection of the address of the person subject to service by public notice on the notice of the first disposition was unlawful on the ground that the Defendant’s duty of care as a good manager in the service by public notice on the notice of the first disposition was not known, and that Nonparty 4, the representative director of the Plaintiff, directly received the notice of the second or fourth disposition, or received each of the instant dispositions through Nonparty 5, who was delegated the authority to receive it.

Furthermore, the lower court determined that the disposition of imposition of corporate tax and special surtax for the business year 1997 on the premise that the Plaintiff income was generated due to the public sale and the public sale of the real estate in 197 based on each of the preceding dispositions of the instant case and the disposition of imposition of corporate tax and special surtax for the business year 1997 on the premise that the Plaintiff income was generated due to the public sale is null and void, and the disposition of public sale on the second real estate in order to collect the delinquent tax amount is all null and void, so it cannot be deemed that the Plaintiff income was generated from the transfer of assets due to the public sale.

C. However, we cannot accept the judgment of the court below for the following reasons.

(1) The reasoning of the lower judgment and the record reveal the following facts.

① The Defendant, while making the disposition Nos. 2 through 4 of the instant case, served each tax notice by registered mail. The details of the notice of tax payment and the notice delivery book concerning the disposition Nos. 2 through 4 of the instant case are written as “the date of the issuance of the notice” and “the date of the notice, Mar. 5, 197” and “the date of the issuance of the notice, Mar. 31, 1997”; and the column of the representative as “the previous representative director, who is not Nonparty 4, the representative director of the Plaintiff at the time,” respectively, and the date of return and the date of re-delivery are in blank. The Plaintiff’s representative is written as “the amount of tax base and the amount of tax on the disposition No. 2 through 4 of the instant case

② Each of the above written notice of tax payment stated in the addressee’s name column, and the sender’s name and address column as “non-party 4” and “non-party 5” respectively in the sender’s name and address column. The mail delivery certificate bears the signature of “non-party 5” in the addressee’s residence and name column, “No. 5492” and “No. 7, 97.3.7” in the delivery date column. The mail delivery certificate bears the signature of “non-party 4.”

③ At the time, Nonparty 4, the representative director of the Plaintiff, who was registered as a resident in Songpa-gu, Seoul (No. 4 omitted), the domicile of which is the domicile on the corporate register, did not confirm whether he actually resided in the domicile, and whether he reported “Seoul Special Metropolitan City, Nowon-gu (No. 5 omitted)” as the service place.

④ From July 3, 1996 to March 18, 1998, Nonparty 4 and Nonparty 7, who was the representative director of the Plaintiff, had visited the tax office from time to time, verified necessary matters concerning the imposition, public sale, etc. of corporate tax or received a tax payment notice directly.

⑤ In the first instance court of the instant lawsuit, the Plaintiff asserted that the instant disposition was invalid as a double taxation, and that the instant disposition was invalid until January 24, 2008, the first instance court rendered a judgment of the first instance court, did not entirely assert that the notice of tax payment was unlawful and invalid. The instant disposition Nos. 2 and 4 began to be asserted that the notice of tax payment was unlawful and invalid.

(2) In light of these facts, it is sufficient to view that, after the notice of each of the instant dispositions 2 or 4 dispositions was sent by mail on March 5, 1997 to Nonparty 4, Nonparty 4, the representative director of the Plaintiff, on the above address, signed the notice in the blank column of the delivery certificate while directly receiving the above notice of tax payment. The lower court determined that, although the recipient appears to have received the notice of tax payment on the “non-party 4” as the “non-party 5,” the recipient was signed on the “non-party 4,” it appears that Non-party 4 received the notice of tax payment on the “non-party 4,” and it is reasonable to view that Nonparty 5’s residence and name column “(resident 5 omitted)” of the addressee’s name as the part of the post office’s name was erroneously stated. The lower court, based on the above certificate of tax payment, based on the fact that the recipient did not directly receive the notice and the return notice were unlawful.

Even if the non-party 4 and the non-party 7, who were the representative director of the plaintiff at the time, were presumed to have been well aware of the taxation dispositions and public auction dispositions including the second and fourth dispositions of this case through visiting the tax office. The non-party 2 and fourth dispositions of this case related to the second and fourth dispositions of this case were imposed not only on the plaintiff's real estate but also on the transfer margin of the public sale, but also on the non-party 2 and fourth dispositions of this case, the plaintiff did not raise an objection that the delivery of each tax notice of this case was illegal until January 24, 2008. Thus, it is reasonable to view that the non-party 4 received each tax notice of this case through the third party entrusted with the authority to receive the delivery of mail, such as explicit and implied notice of tax payment, and that each of the above tax notice of this case was legitimate. However, each of the plaintiff's proof that the plaintiff's receipt of each of the above tax notice of this case was not proper.

In addition, according to the records, the fourth-party disposition of this case is an increase and decrease disposition of the first-party disposition of this case, and the fourth-party disposition of this case is deemed to have been legally served on the plaintiff as seen above. Thus, the first-party disposition of this case is deemed to have been absorbed and extinguished in the fourth-party disposition of this case, which is an increase and decrease disposition.

Thus, the disposition of imposition of the preceding tax amount in arrears, which served as the basis for the disposition of the public sale of the real estate in 197, is valid. Thus, the disposition of the public sale cannot be deemed null and void unless there are special circumstances. Therefore, the disposition of imposition of the corporate tax and special surtax on income from the public sale in 1997 or the public sale of the second real estate in this case for the collection of the delinquent tax amount cannot be deemed null and void.

D. Nevertheless, the court below held that the disposition of the second or fourth dispositions of this case was unlawful on the grounds that the delivery of the notice of tax payment was unlawful and invalid, and that the disposition of the second or fourth disposition of the public sale of the real estate in 197 and the disposition of the second sale of the real estate in this case for the 1997 business year and the imposition of corporate tax and special surtax on income from the public sale of the real estate in 197, and that the disposition of the second sale of the real estate in this case for the collection of the delinquent tax amount is null and void all, and that the disposition of the second sale of the real estate in this case for the business year 199 or 2001, each corporate tax and special surtax for the business year 199 or 201, which reported that the defendant caused income from the transfer of the assets to the plaintiff,

3. Conclusion

Therefore, the part of the judgment of the court below regarding the imposition of corporate tax and special surtax for the business year 199 through 2001 shall be reversed, and that part of the case shall be remanded to the court below for a new trial and determination. The remaining appeals shall be dismissed. It is so decided as per Disposition by the assent of all participating Justices

Justices Ko Young-han (Presiding Justice)