소멸시효는 징수처분에 적용되는 것이며 소멸시효는 납부기한의 다음날부터 기산됨[국승]
Jeonju District Court-2016-Gu Partnership-1216 ( December 15, 2016)
Extinctive prescription is applicable to collection disposition, and the extinctive prescription is calculated from the day following the deadline for payment.
(1) The extinctive prescription applies to a collection disposition, not a disposition, which is not a disposition of imposition, and even if the extinctive prescription of a collection disposition is completed, the disposition of imposition is not immediately unlawful. In addition, since a disposition of imposition is conducted before the exclusion period expires, the extinctive prescription of a collection right shall be calculated from the day following the
Article 26-2(1) of the Framework Act on National Taxes, Article 26-2(2) of the Framework Act on National Taxes, Article 27(1) of the Framework Act on National Taxes, and Article 27(1) of the Framework Act
The revocation of the revocation of the disposition to impose penalty tax on Gwangju High Court (formerju)-2016-Nu-2361 ( October 24, 2017)
AA
000 director of the tax office
Jeonju District Court Decision 2016Guhap1216 Decided December 15, 2016
on 19, 2017
on July 24, 2017
1. The plaintiff's appeal is dismissed.
2. The costs of appeal shall be borne by the Plaintiff.
The judgment of the first instance shall be revoked. The defendant shall revoke the imposition of penalty tax of KRW 72,228,680 on September 1, 2015 against the plaintiff on September 1, 2015.
1. Quotation of judgment of the first instance;
This Court's decision is based on the following: (a) the first instance court's decision is the first instance court's decision in accordance with Article 8 (2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act: (b) the first instance court's decision is the same as the second instance judgment, except for the addition of the judgment mentioned in Article 8 (2) of the Administrative Litigation Act and the second instance court's decision.
2. Additional determination
A. The plaintiff's assertion
Around January 30, 2003, the Plaintiff reported and paid the transfer income tax on the purport that the Plaintiff purchased KRW 710,000,000 and sold the instant real estate in KRW 737,000,000 on or around November 22, 2002, and did not engage in any other active act. As such, the Plaintiff cannot be deemed to have evaded national taxes due to fraud or other unlawful act as prescribed in Article 26-2(1)1 of the Framework Act on National Taxes. Accordingly, the period for exclusion of imposition of five years should apply to the penalty tax of this case.
B. Determination
According to Article 26-2(1)1 of the former Framework Act on National Taxes (amended by Act No. 9911, Jan. 1, 2010; hereinafter the same) (Article 26-2(1)1 of the same Act, a national tax may not be imposed after the lapse of 10 years from the date on which the relevant national tax may be imposed in cases where a taxpayer evades national taxes by fraudulent or other unlawful means. “Fraud or other unlawful means” in the foregoing provision refers to a deceptive scheme or other active act that makes it impossible or considerably difficult to impose and collect taxes. In determining the tax base based on the amount reported by the taxpayer, a taxpayer’s filing of a false double contract, under which the amount of the tax return is determined by the reported value, in order to grant credibility to the amount of the return, and to conceal the actual transaction value, constitutes “Fraud or other unlawful act that significantly makes it difficult to impose and collect taxes as an active deceptive act” (see, e.g., Supreme Court Decision 2014Du4434, Mar.
On the other hand, in a civil trial, even though it is not bound by the facts established in a judgment on other civil cases, etc., the facts established in the already established civil cases are valuable evidence, barring any special circumstance, and thus, it cannot be rejected without any reasonable reasoning (see, e.g., Supreme Court Decision 94Da52768, Oct. 12, 1995). Such a legal principle likewise applies to the facts recognized in the final civil judgment in a civil trial.
The Plaintiff alleged that he/she agreed to bear the excess amount when the transfer income tax is imposed more than one million won, and that he/she agreed to sell and sell the real estate of this case. The former District Court 2012Gahap4502, which was the previous District Court 2012Gahap4502. The above court acknowledged that the Plaintiff attached a false sales contract prepared by reducing the purchase price as KRW 737 million upon reporting the transfer income tax of the real estate of this case, and sentenced Kim***** to dismiss the Plaintiff’s claim on May 31, 2013, on the ground that the obligation to pay the excess amount of the transfer income tax pursuant to the agreement was not specific, as alleged by the Plaintiff. The fact that the above judgment became final and conclusive is significant in this court, and there are no special circumstances to reject
Examining in light of the aforementioned legal principles, the Plaintiff’s act of reducing the transfer value of the instant real estate and attaching a false sales contract stating the reduced transfer value constitutes “Fraud or other unlawful act under Article 26-2(1)1 of the former Framework Act on National Taxes.”
Therefore, the plaintiff's above assertion is without merit.
3. Conclusion
Therefore, the plaintiff's claim is dismissed as it is without merit, and the judgment of the court of first instance is just, and the plaintiff's appeal of this case is dismissed as it is without merit. It is so decided as per Disposition.