early 2016 Heavy0392 (2016.05)

The delivery of the tax payment notice of this case made on the premise that the spouse's domicile is the Plaintiff's residence is illegal.

The plaintiff received a number of official documents, etc. at his/her resident registration address, and the plaintiff and his/her spouse made a statement that he/she was in a separate relationship with the plaintiff, and it is difficult to see that his/her spouse's domicile is the plaintiff's residence solely on the ground that the plaintiff and his/her spouse were in a legal marital relationship, and thus, the delivery of

Article 8 of the Framework Act on National Taxes

Incheon District Court 2016Gudan50904 Revocation of Disposition of Imposing capital gains tax

MaO

O Head of tax office

2017.04.04

oly 2017.13

1. The Defendant confirmed that the imposition of capital gains tax of KRW 33,297,90 on May 1, 2015 against the Plaintiff was null and void.

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

Cheong-gu Office

Paragraph (1) shall apply.

1. Details of the disposition;

A. Investment in kind in the land of this case

The Plaintiff acquired ownership of 1/54 shares (hereinafter referred to as “instant land”) out of 8963m2 in Songdong-gu, Incheon Metropolitan City as part of the measures for fishing life by developing Songdo-ro, Incheon Metropolitan City. On February 27, 2006, the Plaintiff provided the instant land between EOOOOO and the Plaintiff, and the said company newly constructed a main apartment on the ground, such as the instant land, and entered into a business agreement with the Plaintiff to provide the Plaintiff with the right to occupy an apartment on a size of 50 square meters, and trusted the instant land to the OO real estate trust company.

However, when EOOOO could not proceed with the project, the plaintiff provided the land of this case between AOO development corporation, AOO development corporation and AOO development corporation on March 30, 2007, and the plaintiff supplied 50 square meters of apartments to the plaintiff by implementing the development project. The above AOO development agreement entered into a prop joint project agreement with the purport of constructing a main apartment, and the above OO construction changed the trustee of the land of this case to the Korea Asset Trust Corporation.

B. Disposition of this case

○ On May 1, 2015, the Defendant deemed that the Plaintiff invested in kind the instant land in kind in around 2007 on the grounds that the Plaintiff acquired the right to sell the main apartment complex by investing the instant land in kind and did not report the transfer income tax even after having reported the transfer income tax, and accordingly, the Plaintiff imposed KRW 335,840,760 for the transfer income tax corresponding to the year 2007, but corrected the transfer income tax to KRW 33,297,986 in accordance with the re-assessment decision of the Tax Tribunal under subparagraph 2015. (hereinafter “instant disposition”).

(c) To serve a tax notice by custody;

○ The Defendant sent a tax payment notice stating the details of the instant disposition on May 8, 2015 (hereinafter referred to as “instant tax payment notice”) to the Plaintiff’s resident registration by registered mail, but did not serve the notice as the addressee’s absence.

When it is anticipated that the exclusion period of imposition of the transfer income tax of this case will expire on May 31, 2015, the public official belonging to the defendant visited the plaintiff's address above that of the plaintiff in order to attempt to deliver on May 12, 2015, but the plaintiff visited the plaintiff's address above, but attached only a tax notice notice for arrival due to absence of the plaintiff.

On May 13, 2015, when a public official belonging to the defendant visited the plaintiff at the second domicile, but the door is closed, etc., he immediately visited the plaintiff at the ○○○○○ Ga (hereinafter referred to as the "the domicile of this case"), which is the plaintiff's spouse's resident registration address, and when the plaintiff's mother was met at that place, the plaintiff's mother was considered to be "the plaintiff's mother's domicile" and the plaintiff's mother was considered to be "the plaintiff's mother's domicile" and the tax notice of this case was served by attracting the tax notice at the entrance of the third floor of the above building on the ground that he refused to receive the tax notice.

[Ground of recognition] Unsatisfy, Gap evidence 1 to 7, Eul evidence 1 to 7

the purpose of each entry, as a whole, of the entire pleadings, including branch numbers

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) Illegal assertion of delivery of custody

From November 2012, the Plaintiff was living separately with his spouse knife due to his failure to work until now, and the Plaintiff was living in his domicile at his domicile, and the spouse knife's knife's knife's kn's kn's kn's kn's kn's kn's kn's kn's kn's kn's kn'

2) Do and claim for exclusion period of imposition

The time of occurrence of the Plaintiff’s transfer income of this case is around February 27, 2006 or around June 16, 2006. Thus, the disposition of this case, which was made on May 1, 2015 after seven years from May 31, 2015, is null and void after the expiration of the exclusion period of imposition.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

1) According to Articles 8 and 10(1), 10(2), and 10(3) of the Framework Act on National Taxes, documents under tax-related Acts shall be served at the domicile, temporary domicile, place of business or office of the person in whose name the documents are to be served. If documents are served by mail, such as the delivery of documents by means of postal service or electronic delivery, the service of documents shall be made by registered mail, and if documents are served by delivery to the person in whose name the documents are to be served by registered mail are to be served at the place where the documents are to be served. Article 10(4) of the same Act provides that where documents are served by registered mail to the person in whose name the documents are to be served at the place where the documents are to be served, documents may be served to the person in whose name the documents are to be served, or his employees or persons who are living together with a person who is to receive the documents, but not by registered mail, may be served at the place where the documents are to be served at the place where the documents are to be served by registered mail.

On the other hand, if the service of a tax notice on a taxation disposition violates the relevant provisions of the Framework Act on National Taxes and is unlawful, the service of such notice is invalid (see, e.g., Supreme Court Decision 95Nu3909, Aug. 22, 1995). A tax notice cannot be deemed unnecessary even in cases where a taxpayer has already been aware of the details of the taxation disposition (see, e.g., Supreme Court Decision 2003Du13908, Apr. 9, 2004). The legality of the service of a tax notice or the requirements for service by public notice should be attested by the tax authority (see, e.g., Supreme Court Decision 96Nu3562, Jun. 28, 1996).

2) Regarding this case, the defendant argued that the tax notice of this case was legally served by means of delivery of custody to the head of the family, who is the spouse's domicile, which can be seen as the place of service as the plaintiff's domicile. The "place of residence" did not reach the degree of living, but it is a place where the defendant has continuously resided in the family house, long-term hospital, hotel in long-term hospitalization, hotel in long-term stay, etc. (Article 19 of the Civil Code). Thus, it is examined whether the domicile of this case can be seen as the "place of residence of the plaintiff."

The following circumstances, which can be recognized by comprehensively taking account of the facts acknowledged as above and Gap evidence Nos. 24 through 28 (including branch numbers), the entire purport of pleadings, i.e., (i) the plaintiff transferred his resident registration to "S. Seocheon-dong, Incheon, 2002" and did not change his domicile until now, while the spouse DooO transferred his resident registration to the domicile of this case on October 20, 2014 (the two children transferred their resident registration from November 26, 2013 and October 20, 2014). (ii) The plaintiff received a large number of official documents, delivery certificate, etc. from his residence from around September 2008 to May 2016, and the plaintiff submitted the documents to the plaintiff's residence of this case, and the defendant did not appear to have submitted the documents to the effect that the plaintiff's domicile of this case, which is the domicile of this case, and there is no sufficient evidence to acknowledge that the plaintiff had been in a separate marital relation with the plaintiff's domicile.

3) Therefore, without further examining the remainder of the Plaintiff’s remaining arguments, the instant disposition cannot be deemed to have become effective because it was not lawfully served on the Plaintiff. Thus, the instant disposition is deemed to be null and void.

3. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is so decided as per Disposition.