2014-In-depth-No. 127 (2)

Whether service by public notice is legitimate

For the delivery of a tax payment notice, the tax official's notice shall not be deemed to have been served on the taxpayer because the tax official's notice cannot be deemed to have been served on the taxpayer because he/she did not visit the taxpayer's domicile two times.

Article 11 (Service by Public Notice for Framework Act on National Taxes)

Seoul Administrative Court 2014Guhap64384

ParkA and one other

AA Head of tax office and one other

2015.05.15

2015.06.05

1. Details of the disposition;

A. On August 11, 197, ParkCC established ○○○○, Inc. (hereinafter “instant company”) on a company on December 28, 1992, and held that 3,000 shares of the instant company were held in title trust to Plaintiff Park Jong-B, who is the birth of the instant company, and 300 shares were respectively held in title trust to Plaintiff Park Young-B, the birth of the instant company.

B. During the capital increase with respect to new shares issued by the instant company on June 28, 1996, Plaintiff Park Poe-B accepted 46,000 shares and 20,000 shares respectively, and Plaintiff Park Jung-B accepted 1,106,30 shares and 481,00 shares respectively in the process of capital increase without compensation on December 15, 2000.

C. From March 4, 2010 to June 28 of the same year, the director of the regional tax office of ○○○○ Tax Office, upon conducting a tax investigation, notified the Plaintiffs of the result of the tax investigation that ParkCC should consider the instant company’s shares held in the Plaintiffs’ names as nominal trust and thus levy gift tax pursuant to the provision on deemed donation of title trust property. Accordingly, on December 12, 2011, the head of the Defendant AAB Tax Office, on June 28, 201, determined the gift tax amount of KRW 6,427,431,60, and the gift tax amount of KRW 30,611,514,010 on December 15, 200, notified Plaintiff BBA of the notice of tax payment on the same day, notified Plaintiff BB of the notice of tax payment on the gift tax of KRW 30,61,514,01 on December 1, 2011, Defendant BB Tax Office determined the gift tax amount of KRW 130,5.

D. On March 8, 2012, the Plaintiffs filed a request for review of the said taxation disposition with the Board of Audit and Inspection, and on May 14, 2014, the Board of Audit and Inspection rendered a decision to revoke the respective portion of the gift tax on December 15, 200 among the said taxation dispositions on the ground that the shares acquired by the Plaintiffs during the process of gratuitous increase was not subject to the provision on deemed donation (hereinafter “the remaining taxation disposition”).

[Ground of recognition] Unsatisfy, Gap evidence 1, 2, Eul evidence 5 and 8 (including paper numbers);

(hereinafter the same shall apply), the purport of the whole pleadings

2. Judgment on the main claim

A. The parties' assertion

1) Plaintiff Park A and Defendant A et al.

Plaintiff ParkA, on December 12, 201, visited only one time on the bulletin board and website of the A tax secretary and notified Plaintiff ParkA of the issuance of a written notice on December 12, 201 and then notified Plaintiff ParkA of the fact that Plaintiff ParkA had not resided immediately. As such, Plaintiff ParkA asserted that service by public notice to Plaintiff ParkA was null and void because it did not meet the requirements, and that the instant disposition was not effective. Accordingly, on December 12, 2011, Defendant ParkA head of the tax office asserted that service by public notice to Plaintiff ParkA was lawful.

2) Plaintiff BB and Defendant BB

Plaintiff ParkB, on December 12, 201, visited Plaintiff ParkB at the domicile of Plaintiff ParkB on or around 14:06 on December 14, 201, and then visited Plaintiff ParkB twice on or around 13:20 of the same month, but the service by public notice was already made on or around 10:47 of December 13, 201, before Plaintiff ParkB visited Plaintiff ParkB on or around 13:20 of the same month, and the service by public notice on Plaintiff ParkB was void and the instant disposition also does not take effect. Accordingly, Defendant BB director asserted that the service by public notice was lawful for Plaintiff ParkB’s domicile and the service by public notice was made on the left side of Plaintiff ParkB’s list (No. 28-1 of the evidence No. 28) submitted by Defendant BB director.

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

1) On December 12, 201, a public official in charge of AA tax affairs visited Plaintiff YA at 00,000,000 Dong-ro, Gangnam-gu, Seoul, the domicile of Plaintiff YA, but failed to meet Plaintiff YA and served Plaintiff YA on the door of the entrance. The public official in charge of A tax affairs confirmed that Plaintiff YA had left the office on the same day and asked Plaintiff YA for entry into and departure from the office on the same day, and confirmed that Plaintiff YA had left the Republic of Korea on December 8, 2011. After requesting Plaintiff YA’s publication of public notice on Plaintiff YA on the AA tax affairs website, Plaintiff 2 was notified of gift tax as the mobile phone number of Plaintiff YA, but it was confirmed that Plaintiff YA had been posted on the AA tax affairs website due to impossibility of delivery.”

2) BB세무서 담당공무원은 2011. 12. 12. 14:06 경 원고 박BB의 주소지인 서울 송파구 중대로 00, 000동 000호(문정동, △△△△△△)에 방문하였으나 원고 박BB를 만나지 못하여 현관문에 납세고지서도착 안내문 스티커를 부착하였고, 같은 달 13. 17:20 경 다시 방문하였으나 여전히 원고 박BB을 만나지 못하여 현관문에 납세고지서도착 안내문 스티커를 부착하였다. 한편, BB세무서 담당공무원은 원고 박BB가 대상자로 되어 있는 공시송달자명단(을 제28호증의1)을 작성하였는데 위 명단의 왼쪽 하단에는 '3계/2011. 12. 13. 10:47/박ㅇㅇ이라고 기재되어 있다.

3) Meanwhile, the Plaintiffs received a notice of the results of tax investigation conducted from the director of ○○ Regional Tax Office from March 4, 2010 to June 28, 201, and anticipated that the tax assessment should be imposed at that time, but entered the Republic of Korea on December 8, 201 and entered the Republic of Korea on December 21, 201.

[Ground of recognition] Facts without dispute, entry of evidence Nos. 9 through 19, 22 through 25, 28, 30, 31, 35 and 36, and the purport of the whole pleadings

D. Determination

1) As a matter of principle, the burden of proving whether service by public notice by public notice by public notice by tax authorities is legitimate (see, e.g., Supreme Court Decision 96Nu3562, Jun. 28, 1996). The provisions related to the notice of tax payment are strictly interpreted to ensure the fairness of tax administration by allowing the disposition authority to exclude and take prudent and reasonable disposition in accordance with the large principle of no taxation without law under the Constitution and the Framework Act on National Taxes, thereby ensuring the fairness of tax administration and at the same time, at the same time, to inform the taxpayers of the details of the disposition of imposition in detail, thereby allowing them

It is a mandatory provision to be considered as a mandatory provision (see Supreme Court Decision 96Nu5094 delivered on May 23, 1997).

Article 11(1)3 of the Framework Act on National Taxes and Article 7-2 subparag. 2 of the Enforcement Decree of the Framework Act on National Taxes, where a tax official visited a taxpayer two or more times to deliver a document, but it is deemed difficult to serve a document by the due date due to the absence of the addressee, may serve

(2) The Act provides that

2) Whether service by public notice by the Plaintiff Park Jong-A is legitimate

According to the facts of the recognition of the above facts, the head of the defendant AA Tax Office shall have the domicile of the plaintiff Park Jong-ok 1.

Since the Plaintiff Park Park-A by public notice after visiting the meeting, it was serviced on the notice of tax payment for the Plaintiff Park Park-A.

It would be against the rule of law.

As to this, Defendant AA head of the tax office’s assertion that it is lawful because Plaintiff AAA’s departure from the Republic of Korea was confirmed and re-enters Plaintiff AA’s departure from the Republic of Korea, and that service by public notice was notified to Plaintiff AA as text messages. However, as long as the pertinent statutes provide that: (i) a tax official shall visit a taxpayer at least twice in the absence of the recipient; and (ii) the head of the tax office may serve public notice in the absence of the recipient; and (iii) the head of the tax office’s visit the Plaintiff AA more than twice in the absence of the Plaintiff AA’s Park; (ii) according to the immigration record, Plaintiff AA’s departure from the Republic of Korea on December 8, 201 and then entered the Republic of Korea on December 21, 201; (iv) however, it cannot be ruled that Plaintiff BA could not have entered the Republic of Korea after the first visit of the public official in charge of AA’s duty at the time of service by public notice; and (iv) the head of the tax office’s allegation that Plaintiff BA could not substitute Plaintiff BA’s.

3) Whether service by public notice against the Plaintiff ParkB is legitimate

According to the facts of the above recognition, Defendant BB director of the tax office on December 12, 201, Plaintiff BB

(1) A notice of tax payment for the plaintiff ParkB shall be issued to the public prior to the second visit after making only one visit to the address of the Gu.

As such, Defendant BB head of the tax office asserts that he had visited Plaintiff BB’s domicile twice and served by public notice. However, the following circumstances, which could be known by the above facts and relevant statutes, are that the burden of proof as to the legitimacy of service by public notice is against Defendant BB head of the tax office who is the tax office, and Defendant BB head of the tax office has failed to submit any data as to when the Plaintiff BB visited the domicile of Plaintiff BB, and ② the public official in charge of BB head of tax office visited Plaintiff BB BB’s domicile on December 13, 201, and returned Plaintiff BB head of the tax office to BB head of tax office’s domicile on December 17:20, 201, it is difficult to expect that the public official in charge of BB head of tax office visited Plaintiff BB B BB head of tax office to serve by public notice on the BB head of tax office’s bulletin, and ③ it is difficult to deem that there was a special need to prepare in advance a list written by public notice.

4) Sub-committee

In full view of the above circumstances, it is difficult to eliminate doubt that the termination period of the exclusion period is expected to impose the instant disposition and intentionally left the country in order to avoid the receipt of the written notice of imposition and collection in accordance with Daom, however, the requirements for service by public notice prescribed by the relevant statutes are strictly construed and applied in accordance with the no taxation without law.

Therefore, the service by public notice by the Defendants is inappropriate as it lacks the requirements. Thus, the disposition of this case is inappropriate.

Sector is null and void (as long as the plaintiff's primary claim is accepted, the conjunctive claim shall be

shall not be determined)

3. Conclusion

Therefore, since the plaintiffs' primary claims are reasonable, all of them shall be accepted, and it is decided as per Disposition.