A tax notice of this case is not a lawful service.

The notice of this case was served on a person who is not an employee, employee, or cohabitant at a place other than the Plaintiff’s address. This is inappropriate because it failed to meet the requirements for service under Article 10 of the former Framework Act on National Taxes. As long as the service was not effective, each taxation by the Defendants against the Plaintiff is invalid.

Article 8 of the Framework Act on National Taxes

2015Guhap57925 Requests for nullification, etc. of a disposition of imposition of capital gains tax

AA

1. The director of the AA tax office;

2. The head of the Seoul Special Metropolitan City AA;

November 4, 2015

December 4, 2015

1. On September 10, 2012, Defendant AA head of the tax office confirmed that the imposition of capital gains tax of KRW 734,618,210 (including additional tax) for the Plaintiff for the year 2003, and the imposition of KRW 73,461,820 for the local income tax of KRW 73,461,820 for the Plaintiff on the same day by the head of Defendant AA head of the Seoul Special Metropolitan City.

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

Cheong-gu Office

The primary purport of the claim is as shown in the text of the claim.

Preliminary claim: on September 10, 2012, Defendant AA director of the tax office imposed transfer income tax of KRW 734,618,210 (including additional tax) on the Plaintiff in 2003, and on the same day, Defendant AA head of the Seoul Special Metropolitan City against the Plaintiff, the imposition of KRW 73,461,820 on the Plaintiff is non-existent.

1. Details of the disposition;

A. On December 31, 2002, the Plaintiff acquired 00 00 o-1 2,405 m2 and 1,211.2 m2 m2 above on the ground of sale from BB, 00 o-1 88-1 m2,405 m2, and transferred the instant real estate to the Plaintiff on June 24, 2003 (hereinafter “the instant real estate”).

B. On August 30, 2003, the Plaintiff submitted a return on the tax base of transfer income and its payment statement to the head of the Defendant AA Tax Office (hereinafter referred to as the “head of the Defendant Tax Office”) with the transfer value of KRW 920,00,000, the acquisition value of KRW 880,00,000, and the transfer income amount of KRW 9,487,450.

C. From May 25, 2012 to June 13, 2012, the head of the tax office having jurisdiction over the Plaintiff’s transfer income tax (hereinafter “instant investigation”) shall conduct a survey on the transfer income tax of the instant real estate at KRW 1,950,00,000, and the head of the tax office having jurisdiction over the transfer income tax of the instant real estate at KRW 734,618,210 (including additional tax) for the Plaintiff on September 1, 2012, the head of the tax office having jurisdiction over the Plaintiff on the same day notified the Plaintiff of the correction and notification of KRW 73,461,820 for the local income tax of KRW 73,461,820 for the year 203 (hereinafter “the head of the tax office”) and the disposition of imposition of the said transfer income tax such as the said transfer income tax as the instant disposition”).

[Ground of recognition] Unsatisfy, Gap evidence 1-2, Eul evidence 1-2, Eul evidence 1-2, the purport of the whole pleadings

2. The plaintiff's assertion

The instant disposition is null and void or non-existent due to the significant and clear defects as follows.

1) The Plaintiff acquired the instant real estate from BB, the debtor, through payment in substitutes, and sold it to Aaa and two others. At the time of the acquisition of the instant real estate, the Plaintiff acquired the debt related to the instant real estate of BB, the former owner, and repaid the said debt in preference to the purchase price for BB, and accordingly, filed a transfer income tax report excluding both the debt acquisition amount and the transfer price and the acquisition price, and the head of the Defendant’s tax office made a transfer income tax report excluding the debt acquisition amount. Although he could have clearly known the aforementioned circumstances in the process of the instant investigation, it is serious and clear that the Defendant’s disposition of the instant real estate increased the transfer price of the instant real estate to KRW 1,950,00,000,000,000,000,000,000

2) The head of the Defendant’s tax office did not notify the tax investigation prior to the instant investigation, which violates the principle of due process under the Constitution and the relevant provisions of the Framework Act on National Taxes, and thus its defect is serious and clear.

3) The chief of the tax office served a notice of the results of the tax investigation on the instant investigation, and the relevant notice of tax investigation by public notice is only indicated as “the notice of the results of the tax investigation” according to the findings of the survey of capital gains tax, but is not entirely indicated as “the notice of the results of the tax investigation”, and thus, it cannot be said that there

4) The notice of tax payment of the instant disposition (hereinafter “the instant notice”) is not the Plaintiff’s cohabitant, but the Plaintiff’s person who did not reside in the Plaintiff’s resident registration place and was served with DD as the Plaintiff’s person who did not reside in the Plaintiff’s resident registration place. Thus, the instant disposition is not invalid or nonexistent.

3. Relevant statutes;

Attached Form 2 shall be as listed in attached Table 2.

4. Determination

A. As to the service of the tax payment notice of this case

1) Article 8(1) of the former Framework Act on National Taxes (amended by Act No. 11873, Jun. 7, 2013; hereinafter “former Framework Act on National Taxes”) provides that “documents prescribed by this Act or other tax-related Acts shall be served on the domicile, domicile, place of business or office of the title holder (referring to the person designated as the title holder; hereinafter the same shall apply).” According to Article 10 of the same Act, documents shall be served by means of delivery, mail, or electronic delivery (Paragraph 1); if documents relating to notice, demand, disposition on default, or governmental order under tax-related Acts are served by mail, they shall be served by registered mail (Paragraph 2); if documents are not served on the person to be served at the place of service, such documents may be served on the person to be served as his/her employee, other employee, or cohabitant, and if documents are not served on the person to be served at the place of service (Paragraph 4), address, place of business, domicile (hereinafter referred to as “transfer of resident registration card, etc.”).

The service of documents under the tax law is an act that seriously affects the formation of a tax claim obligation relationship between the State and the taxpayer. In particular, the tax claim obligation relationship between the State and the taxpayer becomes the starting point of the collection procedure, and the tax claim obligation relationship between the State and the taxpayer is developed mainly, and the taxpayer's objection period is important. Thus, the provisions on the service method under Article 10 of the above Act are mandatory provisions in the purport that the parties concerned are able to clearly determine the service in preparation for disputes over whether the service is lawfully made in consideration of the importance of the service, such as the payment notice, etc., and it is reasonable to interpret that there was no legitimate service if the service of the tax notice on the taxation does not take effect because the service of the notice is unlawful (see, e.g., Supreme Court Decision 95Nu3909, Aug. 22, 1995). Meanwhile, where a person who is the other party to the taxation disposition delegates the authority to receive postal items or other documents explicitly or explicitly to another person, the delegated authority should be 100 days or 20.

2) Therefore, if the notice of tax payment of this case was served on the plaintiff or his employee or a person who is not the plaintiff's address, etc., or on the plaintiff's employee or a person who is not the plaintiff's employee or a person living together, it cannot be deemed that the plaintiff was served. In full view of Gap's statement Nos. 1, 2, 6 through 8, 10, and Eul's statement Nos. 1 and 7 (including each number), witness FF's testimony, the plaintiff's domicile on the plaintiff's resident registration at the time of the notice of this case was served on 00, 00-00, 1, 2, 101, 202, 200, 300, 100, 200, 200, 300, 200, 100, 300, 200, 300, 200, 300, 200.

In this regard, the chief of the tax office of the defendant asserts that the FF served the plaintiff's postal items, including the instant tax payment notice, to DD upon request of DD, and that the service of the instant tax payment notice is valid since the plaintiff explicitly or implicitly delegated the right to receive postal items to DDD. However, the witness FF knew that the plaintiff was living on the second floor of the above domicile, but it was not aware that the plaintiff was living on the second floor. The items of the plaintiff's postal items, which the director of the plaintiff, were living on the plaintiff at the above address, were served to DD at a point less than about 50 meters away from the above address. The plaintiff's or DD sent the plaintiff's postal items to DD at his own discretion, and that it was served to DD, in principle, at the plaintiff's address, it was delivered to DD, and that the plaintiff did not know that the plaintiff was living on his behalf of DD after the plaintiff's delivery.

Comprehensively taking account of the aforementioned evidence and the facts acknowledged as above, FF served the instant tax payment notice on DD at its own discretion even though there was no separate delegation or request from the Plaintiff or DDD. Even if DD did not refuse to accept the Plaintiff’s postal item, and the Plaintiff’s postal items, including the instant tax payment notice, were served on DD for a certain period, such circumstance alone is difficult to deem that the Plaintiff explicitly or implicitly delegated DD the right to receive postal items, and there is no other evidence to acknowledge otherwise).

3) Ultimately, the tax payment notice of this case is delivered to a person who is not an employee, employee, or cohabitant of the Plaintiff at a place other than the Plaintiff’s address. This is unlawful because it failed to meet the requirements for service as prescribed in Article 10 of the former Framework Act on National Taxes, and so long as the service becomes effective, each taxation disposition against the Plaintiff is null and void. Thus, the Plaintiff’s assertion pointing this out is with merit (as long as it is confirmed that the disposition of this case is null and void upon acceptance of the Plaintiff’s assertion

5. Conclusion

The plaintiff's primary claim is reasonable, and it is so decided as per Disposition.