The tax investigation of this case is a legitimate disposition without any violation of the selection or procedural violation

The instant disposition is legitimate on the premise that there is no error in the procedures of selection and extension of the scope of investigation, violation of the prior notification procedure, notification of tax investigation result, and notification of tax investigation result.

Article 81-7 of the Framework Act on National Taxes

Seoul High Court 2017Nu53905

Kim & Kim

*The Director of the Tax Office

1, 201.6

December 6, 2017

December 20, 2017

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 gift tax amounting to KRW 194,650,710 (additional tax) assessed against the plaintiff on April 3, 2015.

83,350,710 won (including won) shall be revoked.

1. Quotation of judgment of the first instance;

The reasoning of this Court is that the court shall add the same judgment as that of Paragraph 2 with respect to a new argument in this Court, and if 3 below, the court shall order the contents of the 10 comprehensive proposal to include each number; hereinafter the same shall apply. The addition of "the addition of relevant Acts and subordinate statutes" to the corresponding parts of the relevant Acts and subordinate statutes of 14 and 15 shall be the same as the entry of the reasons of the judgment in the first instance, except for the addition of "the addition of relevant Acts

Article 8 (2) of this Act and the main sentence of Article 420 of the Civil Procedure Act shall be quoted.

2. Additional determination

A. Summary of the plaintiff's assertion

**지방국세청장은 원고에 대하여 세무조사 사유가 없음에도 원고를 세무조사 대상자로 선정하였고, 당초 @@지방국세청장이 원고에게 양도소득세에 대한 세무조사를 하겠다는 취지의 사전통지를 한 것과는 달리 원고에게 아무런 통지를 하지 아니한 채 세무조사 범위를 양도세에서 증여세로 확대하였다. 또한, 원고는 **지방국세청장으로부터 세무조사 사전통지를 받은 바 없고, 원고에 대한 세무조사 통지 및 세무조사 결과 통지는 공시송달의 요건을 갖추지 못하여 부적법하다. 위와 같은 점을 종합하면 원고에 대한 세무조사는 위법하고, 그 세무조사 결과에 근거한 이 사건 처분 역시 위법하다.

B. Determination

(1) Whether the procedure relating to the selection of the subject of the tax investigation and the extension of the scope of the investigation is violated

Article 81-6 (4) of the Framework Act on National Taxes provides that "tax officials may conduct a tax investigation to determine the tax base and amount in cases of the items of tax for which tax base and amount of tax are fixed through the investigation by tax authorities," and Article 81-9 (1) of the same Act provides that "tax officials shall not extend the scope of tax investigation under investigation, except in cases prescribed by Presidential Decree, such as where it is confirmed that specific suspicion of tax evasion exists for several taxable periods or is related to other items of tax," and Article 81-6 (2) of the same Act provides that "tax officials shall notify the taxpayers of the reason and scope thereof in writing."

살피건대, 증여세는 과세관청의 조사결정에 의하여 과세표준과 세액이 확정되는 세목으로서 국세기본법 제81조의6 제4항의 조사 대상에 해당할 뿐만 아니라, 을 제6, 16,20호증의 각 기재 및 변론 전체의 취지에 의하면, @@지방국세청장은 당초 원고에 대하여 증여세에 관한 세무조사 사전통지를 하였고, **지방국세청장 또한 조사 개시당시부터 증여세를 조사 대상 세목으로 하여 조사를 개시하였던 사실을 인정할 수 있으므로, **지방국세청장이 당초 양도소득세에 관하여 세무조사 진행 중 증여세로 세무조사의 범위를 확대하였음에도 원고에게 이를 통지하지 아니하였다고 볼 수 없다.

The plaintiff's above assertion is without merit.

(2) Whether a prior notice of tax investigation violates the procedure

(A) Relevant provisions

Article 81-7 (1) of the Framework Act on National Taxes provides that "in cases of conducting a tax investigation, a tax official shall notify a taxpayer subject to such investigation of the items of taxation to be investigated, the period and reason for the investigation, and other matters prescribed by Presidential Decree ten days prior to commencement of the investigation: Provided, That the same shall not apply to cases where it is deemed impossible to achieve the purpose of investigation due to destruction of evidence, etc. if a prior notice is given."

the purpose of the investigation may be achieved because the prior notice is likely to destroy evidence, etc. if it is made.

Where it is deemed that no longer exists, prior notice may be omitted and an investigation may be commenced with approval from the head of the investigating agency, and where a tax investigation has been commenced pursuant to the proviso to paragraph (1), the tax

The notice of tax investigation shall be issued to the effect that the notice of investigation is omitted.

According to Article 81-8(6) of this Act, a tax official shall suspend or resume a tax investigation.

shall be notified in writing of such reasons.

(B) Facts of recognition

(1)*** Investigation of a regional tax office* A public official in charge of the national tax office established a plan to initiate a tax investigation by omitting notification pursuant to the proviso to Article 81-7 (1) of the Framework Act on National Taxes, on September 2014, with the approval of the Director of the Investigation and Management Division and the Commissioner of the National Tax Service

② Accordingly, ** the commissioner of a regional tax office did not give prior notice of tax investigation to the Plaintiff pursuant to the proviso to Article 81-7(1) of the Framework Act on National Taxes, and sent, September 22, 2014, a notice of tax investigation commencing the tax investigation by having the Plaintiff’s domicile as gift tax and the investigation period from September 17, 2014 to October 26, 2014, by registered mail. However, the said notice was returned to the addressee’s unknown address and the Plaintiff did not receive a telephone call, and thus, sent text of the commencement and suspension of the tax investigation to the Plaintiff’s cell phone on October 8, 2014.

(3) ** On October 13, 2014, the commissioner of regional tax office served a notice of tax investigation and suspension of tax investigation (content: from October 7, 2014 to October 26, 2014), and posted such notice on the bulletin board of the tax office.

[Reasons for Recognition] Each entry of evidence Nos. 14, 17 through 19, 21, 24, 25 30, and the purport of the whole pleadings

(C) Whether prior notice of tax investigation is lawful

Examining the above facts in light of the above-mentioned laws and regulations, prior notice of tax investigation may be omitted when there is risk of destruction of evidence, etc. pursuant to the proviso of Article 81-7(1) of the Framework Act on National Taxes, and ** insofar as the director of a regional tax office determines that there is possibility of destruction of evidence in the case of an investigation into the source of funds, and that prior notice is not given pursuant to the above provisions, it cannot be deemed unlawful for the director of a regional

As to this, the Plaintiff asserts that: (a) the time when the director of the regional tax office publicly announced the notice of tax investigation to serve by public notice is October 13, 2014; (b) the service by public notice takes effect only after 14 days from the time of public notice; and (c) the director of the regional tax office has commenced the tax investigation on September 17, 2014, which is the previous one; (b) the director of the regional tax office concerned asserts that it is illegal since it started the tax investigation on September 17, 2014. However, there is no provision that the Framework Act on National Taxes, the Enforcement Decree of the same Act, and the Enforcement Rule of the same Act must provide a notice of tax investigation stating that the notice of tax investigation was

The interpretation that a notice of tax investigation must be given prior to the commencement of the tax investigation may be omitted, without stipulating that it must be served only, and that such notice should be given prior to the commencement of the tax investigation.

In full view of the above facts contrary to the purport of the proviso of Article 81-7(1) of the Framework Act on National Taxes, ** Even if the commissioner of a regional tax office after commencement of a tax investigation satisfies the requirements of service by public notice and notifies the tax investigation accordingly, it cannot be deemed unlawful. The Plaintiff’

(3) Whether notice of tax investigation and notice of tax investigation result are unlawful

Article 11(1)3 of the Framework Act on National Taxes provides that "any case prescribed by Presidential Decree, such as where a document is served by registered mail but is returned because of the absence of the recipient" shall be deemed served 14 days after the main contents of the document are publicly notified. According to Article 7-2(1)1 of the Enforcement Decree of the Framework Act on National Taxes, "where it is deemed difficult to serve the document by the due date because the document is served by registered mail because the document is returned because the recipient is absent,"

** The fact that the director of the regional tax office sent a notice of tax investigation to the Plaintiff’s domicile by registered mail but returned to the Plaintiff’s address is as seen earlier, and comprehensively taking account of the overall purport of pleadings in the evidence Nos. 15, 23, 27, and 28, the public official of the Daejeon regional tax office visited the Plaintiff’s domicile on October 27, 2014, but was absent; the contact was made on September 16, 2014; the fact that the Plaintiff sent the notice of tax investigation to the Plaintiff’s cell phone and sent it to the Plaintiff’s address on November 20, 2014; that the Plaintiff’s phone number was prohibited from arrival; that the director of the regional tax office sent the notice by public notice; and that the fact that the notice was sent to the Plaintiff’s cell phone on December 2, 2014 on December 3, 2014.

As above, the plaintiff *** the Commissioner of the Regional Tax Office's notice of tax investigation and the result of the tax investigation were returned to the absence of the recipient, and the plaintiff, despite the investigator's contact to the plaintiff's mobile phone, was banned from arrival without being exposed to his own mobile phone in contact with the previous tax official, and the investigator visited the plaintiff's domicile but was absent, and in light of the relevant provisions as seen earlier, the plaintiff seems to have intentionally evaded the tax investigation and delivery. Thus, this is identical to Article 11 (1) 3 and Article 11 of the Framework Act on National Taxes.

It is reasonable to view that the case falls under subparagraph 1 of Article 7-2 of the Enforcement Decree of the Act. The Plaintiff’s above assertion is not reasonable.

3. Conclusion

Therefore, the plaintiff's claim shall be dismissed due to the lack of reason. The judgment of the court of first instance is just in conclusion, and the plaintiff's appeal is dismissed.