Cho-2017-west-4370 (2018.06.01)

Whether a notice of tax payment is unlawful and invalid

The instant tax notice service was not effective because it violates the Enforcement Decree of the Postal Service Act, which provides for the delivery of registered mail by the addressee, etc. after obtaining confirmation of the receipt thereof, and thus, the instant disposition is null and void due to significant and apparent defects.

Article 42 of the Enforcement Decree of the former Postal Service Act

Seoul Administrative Court-2018-Gu Group-69205 Revocation of Disposition of Imposing Capital Gains Tax

AA

s. Head of the tax office

on October 14, 2019

1. The Defendant’s imposition of capital gains tax of KRW 582,644,610 (including additional tax) for the year 2009 against the Plaintiff on May 10, 2017 shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

As shown in the disposition (the date of the disposition stated in the written complaint on the records, " May 16, 2017" appears to be a clerical error in the " May 10, 2017", and the above tax amount seems to include additional tax (Evidence B No. 4).

1. Details of the disposition;

A. From November 24, 1995 to August 3, 2001, the Plaintiff was the representative director of B B (the former trade name before the amendment: Korea Co., Ltd.; hereinafter referred to as “instant company”) who is a KOSDAQ-listed corporation, and as of December 31, 2008, the Plaintiff owned 9,067,28 shares of the instant company as of December 31, 2008 and owned the shares of the instant company and owned the shares of 9.89%.

B. The Plaintiff transferred 1,00,000 shares among the shares of the instant company held by it on September 30, 2009, and even after transferring 5,461,069 shares on December 31, 2009 (hereinafter collectively referred to as “transfer of this case”), the Plaintiff did not report and pay the transfer income tax to the Defendant.

C. Accordingly, on April 29, 2017, the Defendant sent to the Plaintiff a notice of tax investigation results and notice of expected tax amount to determine and notify capital gains tax of KRW 582,664,614 (including additional taxes) accrued from the transfer of this case by registered mail (hereinafter “instant disposition”), and on May 2, 2017, the Plaintiff received the notice at the Plaintiff’s domicile. On May 10, 2017, the Defendant determined and notified the Plaintiff of KRW 582,664,614 (including additional taxes) of capital gains tax of KRW 582,664,614 (including additional taxes) attributed to the Plaintiff in 209 (hereinafter “instant disposition”), and the pertinent notice of tax payment referred to as “instant tax payment notice”).

D. On August 17, 2017, the Plaintiff filed an objection against the instant disposition with the Defendant. However, on August 30, 2017, the Defendant rendered a decision to dismiss the Plaintiff’s appeal on the ground that the instant objection had lapsed 90 days from May 16, 2017, the delivery date of the instant tax payment notice, and the Plaintiff filed an appeal with the Tax Tribunal on September 22, 2017. However, the Tax Tribunal rendered a decision to dismiss the Plaintiff’s appeal on the ground that the Plaintiff did not undergo lawful procedures for filing an objection on June 1, 2018.

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 2, 3, 4 (including each number, if any; hereinafter the same shall apply), Eul evidence Nos. 1 through 5, and 8 through 11, and the purport of the whole pleadings

2. Judgment on the Defendant’s main defense

A. Summary of this defense

On May 16, 2017, the Plaintiff filed an objection and objection 90 days after the receipt of the instant tax payment notice.

The appeal was dismissed in entirety. Accordingly, the revocation of the disposition of this case is sought.

The plaintiff's lawsuit is unlawful because it did not go through legitimate pre-trial procedures.

B. Relevant statutes

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

C. Determination

1) According to Article 56(2) of the Framework Act on National Taxes, any administrative litigation against a disposition under tax-related Acts may not be instituted without going through a request for evaluation or adjudgment under the Framework Act on National Taxes and a decision thereon. In such cases, a request for evaluation or adjudgment shall be lawful, such as having to comply with the request period. In a case where a request for evaluation or adjudgment is unlawful due to the passage of the time period, administrative litigation also becomes unlawful (see, e.g., Supreme Court Decision 90Nu8091, Jun. 25, 1991). Meanwhile, under Articles 61(1), 66(6), and 68(1) of the Framework Act on National Taxes, any request for evaluation or adjudgment shall be filed within 90 days from the date (the date on which a notice of disposition is received) on which the relevant disposition becomes known.

Article 61(1) of the Framework Act on National Taxes provides that "the date on which the relevant disposition is known" means the date on which a notice, public notice, or any other method provides that the relevant disposition was taken. However, if a person other than the party to the disposition or a person who receives a notice of disposition pursuant to the Acts and subordinate statutes files an objection or a request for examination, such period shall be calculated on the basis of "the date on which a notice of disposition is received" (see, e.g., Supreme Court Decision 2000Du1164, Jul. 4, 200). Article 10 subparag. 1, 2, and 3 of the Framework Act on National Taxes provides that "the date on which a notice of disposition is given shall be served by mail, which shall be served by mail, but shall not be served by mail, if such person refuses to receive the documents at the place on which the notice of tax payment is to be served by mail or by mail, it shall be deemed that a person who is still engaged in delivery by mail or by mail is not required by 18.

3) We examine this case in light of the above legal principles. In full view of the following circumstances acknowledged as above, Gap evidence Nos. 4, 5, 6, Eul evidence Nos. 8, 9, and 10, and witness KimD's testimony, it is reasonable to view that the service of the tax payment notice of this case was unlawful and did not take effect since the service of the tax payment notice of this case was not effective. Ultimately, the plaintiff's objection and appeal against the disposition of this case were lawful, and the defendant's main safety defense is without merit.

① On May 12, 2017, the Defendant sent the instant tax payment notice to the Plaintiff by registered mail. On May 12, 2017, the record that the instant tax payment notice was sent to the Plaintiff on May 16, 2017, stating that the recipient was sent from the Plaintiff’s domicile (OO, OO, OO, O, hereinafter “the instant apartment”).

section 1.

② However, on May 16, 2017, the witness KimD, who was the party to which the instant tax payment notice was issued, stated in this court that the said registered mail was put in the instant apartment, for lack of any reason, at the time the said registered mail was delivered to the Plaintiff, and that the said registered mail was entered in the instant apartment without the fact that the State EE was received by the employees of the management office.”

③ The method of delivering the instant tax payment notice recognized by the witness KimD’s above statement is in violation of the above former Enforcement Decree of the Postal Service Act, which stipulates that the registered mail shall be delivered upon confirmation of the receipt from the addressee, etc.

④ Meanwhile, the witness KimD stated to the effect that “in the absence of himself from the Plaintiff, who is the owner or resident of the apartment of this case, the mail box was put in the instant apartment and the instant tax payment notice was put in the mail because he received the request by the Plaintiff by wire.” As seen earlier, it is also acknowledged that the Defendant sent the notice of tax investigation results and anticipated tax amount to the Plaintiff on April 29, 2017, to the Plaintiff by the Plaintiff as the recipient.

However, the above request made by the Plaintiff to KimD was merely a single request related to other registered mail prior to the instant tax payment notice, not a registered mail of this case, and the instant tax payment notice itself did not have the above request. As alleged by the Defendant, it does not appear that the instant tax payment notice was made repeatedly requested and accordingly the registered mail was made against the Plaintiff. Even if such repeated request was made for the convenience of the Plaintiff et al., even if such repeated request was made for the convenience of the Plaintiff et al., it is difficult to evaluate that the method of delivering the instant tax payment notice does not violate the law, solely on account of the fact that the delivery of the instant tax payment notice cannot be deemed as the office members or employees of the Plaintiff et al.

⑤ In a case where a postal item is sent by means of registration, barring special circumstances, such as return, it shall be deemed that the postal item was delivered to the addressee at that time (see Supreme Court Decision 2007Da51758, Dec. 27, 2007). However, the effect of the delivery of the registered mail appears to be premised on the fact that the registered mail sent is highly likely to be delivered to the addressee if it is legally delivered in a way that is in accordance with the relevant statutes. If it is acknowledged that the sent registered mail was delivered in a way that cannot be deemed delivery of the registered mail, or that the registered mail was delivered in a way that is not actually delivered, it is difficult to recognize the effect of the delivery of the registered mail.

(6) There is room to deem that the Plaintiff was aware that the instant disposition will be imposed in the future upon being lawfully notified of the results of the tax investigation and the notice of expected taxation, and further, the Plaintiff also recognized the fact that the Plaintiff stated on May 17, 2017 in the column on the date of receiving the notice of disposition (or the date on which the Plaintiff first became aware of the disposition) by filing the instant objection to the Defendant. However, even if the Plaintiff received the instant tax payment notice on May 17, 2017 or was aware of the instant disposition due to any circumstance, as stated in the instant written objection, even if the Plaintiff was aware of the fact, in light of the legal principles as seen earlier, the delivery of the instant tax payment notice to the Plaintiff in violation of the method of delivery by registered mail is lawful or unnecessary.

3. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff was unable to receive the instant disposition, and the instant disposition, premised on the fact that the instant disposition was served on the Plaintiff on May 16, 2017, is null and void, and thus ought to be revoked.

B. Determination

Article 9(1) of the National Tax Collection Act provides that when the head of a tax office intends to collect a national tax, he/she shall issue to a taxpayer a written notice indicating the taxable year, tax item, amount of national tax, the basis for calculation, deadline for payment, and place of payment of such national tax. The above provision of the National Tax Collection Act does not merely provide a decoration for the convenience of tax administration, but rather provides a fair and reasonable disposition to exclude a taxpayer from the taxation authority in accordance with the principle of no taxation without law as prescribed by the Constitution and the Local Tax Act, thereby ensuring fairness in tax administration, and at the same time providing the taxpayer with a detailed notice of the details of the disposition of taxation and for the convenience of a decision on whether to object to the disposition of taxation and appeal for dissatisfaction. Thus, the tax disposition without a legitimate notice of tax payment is a mandatory provision, because of a grave and obvious defect and thus, it shall be deemed null

The Defendant’s service of the instant disposition against the Plaintiff did not take effect because the service of the instant disposition was unlawful as seen earlier, and thus, the instant disposition is deemed null and void due to a grave and apparent defect.

4. Conclusion

If so, the plaintiff's claim is reasonable, and thus, the disposition of this case in the sense of declaring invalidation.

It is so decided as per Disposition by the assent of all participating Justices.