2. On May 21, 2015, the Defendant issued to Plaintiff BB on May 21, 2015, and confirmed that each disposition of imposition of capital gains tax of KRW 90,705,280 (including additional tax) for each year 2007 against Plaintiff CCC was null and void.

3. All costs of the lawsuit shall be borne by the defendant.

The judgment is primarily sought, such as the Disposition No. 2.

Preliminaryly, the Defendant’s imposition of capital gains tax of KRW 90,705,280 (including additional tax) for the year 2007 against Plaintiff CCC on May 21, 2015 is revoked on May 28, 2015.

The reason why this Court is used for this part is as stated in Paragraph (1) of the judgment of the first instance except for the dismissal of Paragraph (e) of Article 1 of the Reasons for the Judgment of the first instance as follows. Thus, it is acceptable in accordance with Paragraph (2) of Article 8 of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

[Supplementary Use]

E. On August 18, 2015, Plaintiff BB filed an appeal with the Tax Tribunal on the instant Disposition No. 1. On September 21, 2015, Plaintiff CCC filed an appeal with the Tax Tribunal on the instant Disposition No. 2. On January 27, 2016, the Tax Tribunal rendered a decision that “the transfer value of Plaintiff BB shares among the instant real estate shall be reviewed based on financial evidence, etc., and the tax base and tax amount shall be corrected according to the results, and the remainder of the appeal shall be dismissed.” On the Plaintiff CCC’s appeal, the first decision was made to dismiss the appeal on the ground that the period of appeal was elapsed on December 14, 2015. In accordance with the purport of the Tax Tribunal’s decision on the Plaintiff BB’s appeal, the Defendant further investigated the amount of the instant real estate sold and the result of re-audit to Plaintiff B from February 29, 2016 to March 11, 2016.”

2. Judgment as to the main claim

A. The plaintiffs' assertion

1) The instant disposition against Plaintiff CCC is null and void since the tax payment notice has not been served lawfully.

2) The taxpayer following the transfer of the instant real estate ought to be deemed AA pursuant to Article 101(2) of the former Income Tax Act. Accordingly, each of the instant dispositions is null and void as a disposition against a person who is not liable for tax payment.

3) separate from the report of tax base of capital gains tax of AA, the Plaintiffs prepared a tax base return of capital gains tax following the transfer of the instant real estate and submitted it to the district tax office having jurisdiction over each domicile. Accordingly, even if the taxpayer, other than the Plaintiffs, following the transfer of the instant real estate, the exclusion period of capital gains tax for the Plaintiffs shall be five years pursuant to Article 26-2(1)3 of the former Framework Act on National Taxes (amended by Act No. 8830 of Dec. 31, 2007; hereinafter the same shall apply). However, each of the instant dispositions is null and void since it was made five years after the exclusion period of imposition has elapsed since the tax office revoked the return of capital gains tax of AA and did not refund the amount of tax paid, but did not hold each of the instant dispositions to the Plaintiffs at the same time, it constitutes a contradictory disposition that is compatible with two different dispositions on one taxable object of transfer of the instant real estate.

(b) Related statutes;

It is as shown in the attached Form.

(c) Fact of recognition;

1) The plaintiffs and FF, GG, HH, and III (hereinafter "six persons including the plaintiff, etc.") were siblings of AA, and they received the instant real estate from AA on August 10, 2005. The six persons including the plaintiff, etc. sold the instant real estate to DD on September 8, 2006 at KRW 50 million. However, under mutual understanding, the plaintiff CCC and the purchaser DD representing the seller, signed a sales contract (hereinafter "sales contract of this case") dated September 8, 2006, stating the purchase price as KRW 50 million, which is less than the actual purchase price.

2) DDR paid the purchase price for the instant real estate in KRW 50 million on September 8, 2006, KRW 445 million on December 5, 2006, KRW 100 million on December 5, 2006, and KRW 50 million on March 2, 2007, respectively, to Plaintiff CCC, thereby paying the purchase price under the said sales contract.

3) Of the purchase price of KRW 445 million paid by DD on December 5, 2006, KRW 107,367,990, out of the purchase price of KRW 445,000,000, was used for the payment of taxes, such as capital gains tax on this day, and the remainder was fully distributed to the Plaintiff et al. al. 6. The total amount of 50,000,000,000 paid by DD on March 2, 2007, was distributed to the Plaintiff et al.

4) On December 20, 2006, AA declared and paid capital gains tax of KRW 97,607,270 as a result of the transfer of the instant real estate in the Zfa, which was determined to be a taxpayer of capital gains tax pursuant to Article 101(2) of the former Income Tax Act. The Plaintiff et al. prepared a tax base return of capital gains tax to the competent tax office having jurisdiction over each domicile, as indicated below, to the effect that there is no tax payable by the Plaintiff et al. for the above reasons.

[Do List] Details of submitting a tax base return of capital gains tax

No.

Multi-investment

Date of Submission

Local Tax Offices

1

December 20, 2006

* tax secretary*

2

December 20, 2006

* tax secretary*

3

FF

December 20, 2006

* tax secretary*

4

GG

December 19, 2006

* tax secretary*

5

H H H

December 19, 2006

* tax secretary*

6

III

December 19, 2006

* tax secretary*

5) 이 사건 부동산은 2007. 1. 31. ㅇㅇ시 ㅇㅇ면 ㅇㅇ리(이하 'ㅇㅇ리'로 줄여 쓴다) ***-5 임야 4,930㎡, ㅇㅇ리 ***-6 임야 1,000㎡, ㅇㅇ리 ***-7 임야 22㎡로 분할되었다. ㅇㅇ리 ***-5 임야는 2007. 2. 7. 그 지목이 '전'으로 변경되었고, ㅇㅇ리 ***-7 임야는 2007. 2. 7. 그 지목이 '도로'로 변경되었다.

6) ㅇㅇ리 ***-5 전 4,930㎡와 ㅇㅇ리 ***-7 도로 22㎡에 관하여 2007. 3. 6. DDD 앞으로 소유권이전등기가 경료되었고, ㅇㅇ리 ***-6 임야 1,000㎡에 관하여2007. 3. 6. DDD의 남편인 EEE 앞으로 소유권이전등기가 경료되었다.

[Ground of Recognition] A’s 2-1, A’s 3-1, 2-1, 4-1 through 12, A’s 7-1, 2, A’s 9-1, 2, 3, A’s 12-1 through 6, A’s 15 and 16, A’s 17-1 through 10, A’s 20 through 23, A’s 27-1, 27-2, 3, B’s 1, 2, 4, and 11-1, and 2 of the evidence, testimony of DD for the first instance trial, the purport of the whole pleadings.

D. Determination

1) Determination on the first argument

The reason why this Court is used is the same as the entry from the last 5th to the 7th 8th th h eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth.

2) Determination on the second argument

The purpose of Article 101(2) of the former Income Tax Act is to deny any transfer by way of donation in order to avoid capital gains tax and impose capital gains tax on the donor who is the actual income earner. Therefore, in cases where capital gains do not substantially belong to the donor, Article 101(2) of the former Income Tax Act shall not apply (see Supreme Court Decisions 2001Du8452, Feb. 27, 2004; 2013Du18438, Jan. 16, 2014).

In other words, this case’s return to health expenses, and the remainder of the sales expenses, excluding the amount used for tax payment, out of the sales expenses of the real estate in this case’s sale, was distributed to the Plaintiff et al. as seen earlier. In short, if there are circumstances, it cannot be deemed that capital gains from the sale of the real estate in this case were actually reverted to AA, a donor, and thus, Article 101(2) of the former Income Tax Act cannot be applied. The second argument

3) Judgment on the third argument

A) the starting point of the exclusion period

In principle, the exclusion period for imposition of capital gains tax on the transfer of assets shall commence from June 1 of the year following the date when the deadline for the final return on tax base expires: Provided, That where land is transferred within a zone subject to land transaction permission pursuant to Article 110 (1) of the former Income Tax Act, the exclusion period shall commence from June 1 of the year following the year when the land transaction permission date belongs pursuant to Article 110

In other words, considering the purport of the entire pleadings in the statement in the Evidence Nos. 10 and 25 returned to the instant case, the real estate was located in the land transaction permission zone at the time when the Plaintiff et al. transferred the instant real estate, and six persons such as the Plaintiff et al. on February 26, 2007 ** the market for the sale of the instant real estate * the land transaction permission period for the transfer of the instant real estate. Accordingly, the exclusion period for imposition of the transfer income tax following the transfer of the instant real estate is proceeding from June 1, 2008, following the year when the land transaction permission date belongs.

B) Whether the exclusion period has expired

Article 26-2(1) of the former Framework Act on National Taxes provides that in principle, the exclusion period of national taxes shall be five years. However, each of the dispositions of this case was conducted on May 21, 2015, and May 28, 2015, which is apparent in the basin, from June 1, 2008, when five years have elapsed since June 1, 2008, which is the starting point of the exclusion period. Accordingly, each of the dispositions of this case is null and void after the lapse of the exclusion period. The Plaintiffs’ third assertion is with merit.

C) Defendant’s assertion and judgment

(1) The defendant's assertion

㈎ 원고들이 제출한 과세표준신고서는 과세관청의 이해를 돕기 위한 참고자료에 불과할 뿐만 아니라 과세표준의 기재가 누락되어 있는 등 적법한 신고라고 볼 수도 없다. 따라서 이 사건 각 처분에 관한 국세부과의 제척기간은 구 국세기본법 제26조의2 제1항 제2호의 규정에 따라 7년으로 보아야 한다.

㈏ 이 사건 부동산의 양도에 따른 양도소득이 실질적으로 원고들에게 귀속되었음에도 불구하고 그 납세의무자를 AAA로 하여 신고한 것은 구 국세기본법 제26조의2 제1항 제1호에서 정하고 있는 '사기 기타 부정한 행위'에 해당한다고 보아야 한다. 한편 원고들은 이 사건 부동산의 양도가액이 5억 5,000만 원임에도 불구하고 그 가액을 5억 원으로 기재한 허위의 매매계약서를 제출하는 방법으로 양도소득세를 신고하였다. 이러한 행위 또한 단순히 세법상의 신고를 하지 아니한 경우라고 볼 수 없고, 조세의 부과와 징수를 불가능하게 하거나 현저하게 곤란하게 하는 적극적 행위에 해당한다고 보아야 한다. 따라서 이 사건 각 처분에 관한 국세부과의 제척기간은 구 국세기본법 제26조의2 제1항 제1호의 규정에 따라 10년으로 보아야 한다.

(2) Determination

㈎ 구 국세기본법 제26조의2 제1항은 무신고와 과소신고를 각각 달리 취급하고 있는 것으로 이해되므로 7년의 부과제척기간을 규정한 구 국세기본법 제26조의2 제1항 제2호는 과세표준확정신고를 하여야 할 의무가 있음에도 아예 그 신고를 하지아니한 무신고의 경우에 적용되고 과소신고의 경우에는 구 국세기본법 제26조의2 제1항 제3호에 의하여 5년의 부과제척기간이 적용된다고 보아야 한다(대법원 2013. 7. 11.선고 2013두5555 판결 참조). 한편 과세표준신고서에 기재된 내용에 오류나 탈루가 있는 경우에 그와 같은 오류나 탈루로 인하여 과세표준신고가 적법하지 아니하다고 하더라도 그와 같은 사정만을 들어 곧바로 무신고에 해당한다고 볼 수는 없고, 신고내용과 그 취지, 오류나 탈루된 부분의 내용, 오류 등이 부과권 행사에 미치는 영향 등을 모두 고려하여 무신고에 해당하는지 여부를 판단하여야 한다.다시 이 사건으로 돌아와 보건대, 앞서 든 각 증거에 변론 전체의 취지를 더하여 인정할 수 있는 아래와 같은 사정을 모두 종합하여 보면, 원고들이 제출한 양도소득세 과세표준신고서가 과세관청의 이해를 돕기 위한 참고자료에 불과하다고 볼 수는 없고, 위 신고서에 오류 내지 탈루가 있다고 하더라도 이를 들어 무신고에 해당한다고 볼 수도 없다. 피고의 첫 번째 주장은 받아들일 수 없다.

① On December 20, 2006, AA reported and paid transfer income tax on the premise that it becomes a taxpayer of transfer income tax pursuant to Article 101(2) of the former Income Tax Act.

The plaintiff et al. submitted a tax base return of capital gains tax to the district tax office having jurisdiction over each domicile separately from the above tax return of capital gains tax, and the head of each tax office having jurisdiction over each domicile issued a certificate of receipt to the plaintiff et al. (in case of submitting it as reference material to help the understanding of the tax office, it would be sufficient to submit the tax base return of six persons including the plaintiff et al., the district tax office having jurisdiction over AA, only the Z tax office)

② The tax base return of capital gains filed by the Plaintiffs is in accordance with the attached Form 84, which is set forth in Article 105(1) of the former Income Tax Act, Article 169(1) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 20212, Aug. 6, 2007; hereinafter the same shall apply), and Article 103(2) of the former Enforcement Rule of the Income Tax Act (amended by Ordinance of the Ministry of Finance and Economy No. 554, Apr. 17, 2007). Meanwhile, the calculation statement of capital gains attached to the above report is written in detail.

③ In filing a tax base return on capital gains, the Plaintiffs stated on one page “where the donor reported and paid capital gains tax as it falls under the wrongful calculation book by making the donor a short-term transfer of donated assets,” and stated “where the donor made a return and payment of capital gains tax as it falls under the wrongful calculation book.” According to the form and contents of the tax base return filed by the Plaintiffs, the Plaintiffs’ report on capital gains tax can sufficiently be known that the Plaintiffs’ tax base and tax amount are zero won in spite of the transfer of the relevant real estate, and there is no basis to deem such a report as unlawful under Articles 105(3) and 110(2) of the former Income Tax Act (Article 105(3) and Article 110(2) of the former Income Tax Act).

④ The fundamental reason for extending the exclusion period for imposition of national taxes is that it is difficult to find out the fact of taxation requirements on national taxes due to a defect in the act of filing a return. In addition to the details and circumstances of the Plaintiffs’ return, even if the Plaintiffs filed a return of the remaining tax base and tax amount to the effect that they are zero won in submitting the tax base and tax amount erroneously determined whether or not they belong to the tax liability, it can only be deemed as falling under under under under the return, and it cannot be deemed as falling under the return of tax base and tax amount in the sense that it falls short of the legitimate tax base and tax amount.

㈏ 구 국세기본법 제26조의2 제1항은 제3호에서 상속세・증여세 이외의 국세의 부과제척기간을 원칙적으로 '당해 국세를 부과할 수 있는 날부터 5년간'으로 규정하는 한편, 제1호에서 '납세자가 사기 기타 부정한 행위로써 국세를 포탈하거나 환급・공제받는 경우'에는 '당해 국세를 부과할 수 있는 날부터 10년간'으로 하도록 규정하고 있다. 구 국세기본법 제26조의2 제1항의 입법 취지는, 조세법률관계의 신속한 확정을 위하여 원칙적으로 국세 부과권의 제척기간을 5년으로 하면서도, 국세에 관한 과세요건사실의 발견을 곤란하게 하거나 허위의 사실을 작출하는 등의 부정한 행위가 있는경우에는 과세관청이 탈루신고임을 발견하기가 쉽지 아니하여 부과권의 행사를 기대하기 어려우므로, 국세의 부과제척기간을 10년으로 연장하는 데에 있다. 따라서 같은 항 제1호의 '사기 기타 부정한 행위'란 조세의 부과와 징수를 불가능하게 하거나 현저히 곤란하게 하는 위계 기타 부정한 적극적인 행위를 말하고, 다른 어떤 행위를 수반함이 없이 단순히 세법상의 신고를 하지 아니하거나 허위의 신고를 함에 그치는 것은 이에 해당하지 않지만, 과세대상의 미신고나 과소신고와 아울러 수입이나 매출 등을 고의로 장부에 기재하지 않는 행위 등 적극적 은닉의도가 나타나는 사정이 덧붙여진 경우에는 조세의 부과와 징수를 불능 또는 현저히 곤란하게 만든 것으로 볼 수 있다(대법원 2015. 9. 15. 선고 2014두2522 판결 참조). 이때 적극적 은닉의도가 객관적으로 드러난 것으로 볼 수 있는지 여부는 당해 조세의 확정방식이 신고납세방식인지 부과과세방식인지, 미신고나 허위신고 등에 이른 경위 및 사실과 상위한 정도, 허위신고의 경우 허위 사항의 구체적 내용 및 사실과 다르게 가장한 방식, 허위 내용의 첨부서류를 제출한 경우에는 그 서류가 과세표준 산정과 관련하여 가지는 기능 등 제반 사정을 종합하여 사회통념상 부정이라고 인정될 수 있는지에 따라 판단하여야 한다(대법원 2014. 2. 21. 선고 2013도13829 판결 참조). 한편 조세범 처벌법 제3조 제1항 등에서는 '사기 기타 부정한 행위'가 형사처벌의 구성요건으로 되어 있으므로, 어떠한 행위가 조세법상'사기 기타 부정한 행위'에 해당하는지 여부를 가림에 있어서도 형사처벌 법규의 구성요건에 준하여 엄격하게 해석하여야 할 것이다(대법원 2014. 5. 16. 선고 2011두29168 판결 참조).

First, despite the fact that the transfer income tax from the transfer of the real estate of this case actually reverts to the plaintiffs, the plaintiffs filed a return of their transfer income tax with the purport that the provisions of Article 101 (2) of the former Income Tax Act apply, and thus, their tax base and tax amount are zero won. However, the plaintiffs' report of transfer income tax can only be seen as arising from misunderstanding of the legal principles as to the scope of application of Article 101 (2) of the former Income Tax Act, and it is difficult to deem that it was made with any positive concealment intention).On the other hand, the return of transfer income tax submitted by the plaintiffs was accompanied by the gift contract and related documents, including a copy of the register, and the plaintiff et al. filed a return of transfer income tax except AA, while the report of transfer income tax submitted by the plaintiffs was written with the reason that it actually reverts to the actual taxpayer, the tax authority seems to have sufficiently caused the genuine taxpayer by examining whether it actually belongs to the transfer income tax. Accordingly, this part of the defendant's assertion cannot be accepted.

Next, in addition to the overall purport of the pleadings, the plaintiffs filed a tax base return on the transfer income tax on December 20, 2006, along with the sales contract of this case. Meanwhile, as seen earlier, the sales contract of this case states that the purchase price of this case is less than 50 million won, which is the actual purchase price, less than 50 million won (the sales contract of this case is referred to as "the so-called "the sales contract of this case").

However, in full view of all the circumstances as seen above, even if the plaintiffs filed a transfer income tax report along with the sales contract of this case, it cannot be deemed as a "Fraud or other unlawful act" under Article 26-2 (1) 1 of the former Framework Act on National Taxes. The defendant's assertion on this part cannot be accepted.

① According to Article 169(1) of the former Enforcement Decree of the Income Tax Act, a person who intends to make a preliminary return of tax base of transfer income is required to attach a copy of the contract for sale and purchase of the assets, land cadastre and a copy of the register of the register of accounts to the preliminary return of

In filing a tax base return on December 20, 2006, the Plaintiffs submitted both the gift contract (which is related to the donation contract entered into between AA and the Plaintiffs) and the land cadastre and a copy of the register of the instant real estate in addition to the instant sales contract. Meanwhile, a separate sales contract, other than the instant sales contract, stating the purchase price as KRW 550 million between the Plaintiff, etc. 6 and DD, has not been prepared. In light of these circumstances, the basic reason why the Plaintiffs submitted the instant sales contract along with the instant sales contract, other than the donation contract, seems to have been to have been to submit the data on the acquisition and transfer of the instant real estate in accordance with Article 169(1) of the former Enforcement Decree of the Income Tax Act.

② The difference between KRW 500 million and the actual purchase price of KRW 550 million on the instant sales contract is below KRW 50 million, and the difference is below 10% of the total purchase price. On the basis of the Plaintiff et al., the difference is below KRW 8,330,000 if it is divided based on the Plaintiff et al. six. Meanwhile, as Article 101(2) of the former Income Tax Act applies, the Plaintiff et al. appears to have recognized that the amount of capital gains tax to be paid by the Plaintiff et al., regardless of the purchase price, is 00,000. In short, it is difficult to view that the Plaintiffs submitted the instant sales contract with an active intent to conceal actual capital gains by paying attention to the difference in the above purchase price.

③ To apply Article 26-2(1)1 of the former Framework Act on National Taxes, recognition of tax evasion ought to be made (see, e.g., Supreme Court Decision 2013Du19516, Feb. 27, 2014). However, in reporting the remaining transfer income tax by misunderstanding the legal doctrine on the scope of application of Article 101(2) of the former Income Tax Act, the Plaintiffs appears to have been aware of “0 won”. The above report on the transfer income tax seems to have no relation as to whether the actual purchase price was 550 million and 500,000,000 won, and the function of the Plaintiff’s report on the transfer income tax appears to have been proving the fact of transfer itself rather than proving the amount of the purchase price. In full view of all, it is difficult to view that the Plaintiffs, even if the Plaintiffs filed a report on the transfer income tax with the instant sales contract attached thereto, there was a perception that they were tax evasion.

③ On March 26, 2015, Plaintiff BB received notice of the result of the tax investigation from the Defendant on March 26, 2015, on behalf of the Plaintiff et al., filed a request for review of the propriety of the taxation before April 29, 2015. However, according to the review of the review of the legality of taxation before imposing tax, the Defendant decided on May 20, 2015 that “it is difficult to view Plaintiff BB et al.’s report of capital gains tax reported by the Plaintiff B et al., along with the instant sales contract as fraud

E. Sub-decision

As seen earlier, each of the instant dispositions was taken after the expiration of the exclusion period, and thus, each of the instant dispositions ought to be deemed null and void without further determining the remainder of the Plaintiffs’ remaining arguments.

3. Conclusion

Therefore, the primary claim of the plaintiffs must be accepted for the reason of its reasoning. Since the judgment of the first instance is unfair for the conclusion, it is so revoked, and it is so decided as per Disposition by the assent of all participating Justices on the bench to accept the primary claim of the plaintiffs seeking a nullification of each disposition of this case

1) Of KRW 445 million paid on December 5, 2006, KRW 80 million paid by EE, who is the husband of DD, actually paid KRW 45 million.

2) The legal principle that Article 101(2) of the former Income Tax Act cannot be applied in cases where the transfer income does not substantially belong to a donor is recognized by a judicial precedent in consideration of the legislative intent in the absence of an explicit provision. Meanwhile, the aforementioned legal principle explicitly reflected is starting with the amendment of the Income Tax Act by Act No. 9897 on December 31, 2009 (Provided, That this provision was newly established in the proviso of Article 101(2) of the Income Tax Act, stating that “if the transfer income is substantially reverted to the donee in question, this shall not apply.”

3) To apply Article 26-2(1)1 of the former Framework Act on National Taxes, recognition of tax evasion ought to be made (see, e.g., Supreme Court Decision 2013Du19516, Feb. 27, 2014). However, in light of the developments leading up to the Plaintiffs’ filing of capital gains tax, the Plaintiffs merely deemed to have been aware of tax evasion, rather than having been aware of the fact that they had been tax evasion.