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

Cheong-gu Office

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

Preliminary claim: The transfer income tax attributed to the Plaintiff on December 4, 2015 that the Defendant made against the Plaintiff on December 4, 2015

The imposition of KRW 80,00,000 and penalty tax of KRW 85,280,000 shall be revoked.

A. On April 18, 2008, the Plaintiff acquired a building of 1728-7 square meters and above ground (hereinafter “the instant real estate”) at KRW 2.1 billion, but transferred it to AA (Death on February 15, 2013, hereinafter “the deceased”) on August 17, 2009, and on October 31, 2009, the Plaintiff made a preliminary return of capital gains tax return to the Defendant, accompanied by a sales contract (Evidence A2, hereinafter “the instant sales contract”) with the transfer value of KRW 2.32 billion and KRW 1728-7 square meters, and KRW 589,000,000,000 from September 17, 2015 to October 16, 2015, the Defendant prepared a revised contract for capital gains tax of KRW 2008,000,000,000,000 for the instant real estate and reported the transfer value to the Plaintiff.

C. The Plaintiff dissatisfied with the instant disposition and filed an appeal with the Tax Tribunal on February 29, 2016, but was dismissed on July 18, 2016.

Facts that there is no dispute over recognition, entry in Gap's Nos. 1, 3, 4, 6, Eul's No. 1 and 3 (including branch numbers) and the whole pleadings.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The primary claim

A) Report of transfer income tax following the transfer of the instant real estate does not fall under “Fraud or other unlawful acts prescribed in Article 26-2(1)1 of the former Framework Act on National Taxes (amended by Act No. 10405, Dec. 27, 2010; hereinafter “former Framework Act on National Taxes”) and the exclusion period of imposition of national taxes is applied until May 31, 2015 when the period of imposition of national taxes becomes five years from June 1, 2010. However, the instant disposition was made on December 4, 2015, and thus, the imposition period of national taxes is null and void as it is apparent that it imposed a exclusion period of imposition of national taxes.

B) According to Article 81-8(2) of the former Framework Act on National Taxes, a tax investigation period shall not exceed 20 days. However, the Defendant conducted a tax investigation for 30 days from September 17, 2015 to October 16, 2015. Therefore, the instant disposition is due to a tax investigation that did not comply with due process under the Framework Act on National Taxes, and its defect is serious and obvious and void.

C) After the Plaintiff reported and paid all the transfer income tax from the transfer of the instant real estate, the Plaintiff trusted that the transfer income tax will not be levied any more than 20 times the transfer income tax paid by the Plaintiff. However, the Defendant rendered the instant disposition exceeding 20 times the transfer income tax paid by the Plaintiff. This is against the principle of proportionality, such as breaking the Plaintiff’s trust that the transfer income tax from the transfer of the instant real estate would not be imposed, and undermining the legal stability of the Plaintiff, such defect is serious and obvious.

2) Preliminary Claim

A) The Defendant, on the basis of the facts that an intermediate payment was additionally withdrawn in addition to KRW 150 million from the deceased’s account at the date of intermediate payment, and the facts that the intermediate payment of the instant sales contract was additionally withdrawn in addition to KRW 200 million from the deceased’s account, and the confirmation letter issued by BB, the deceased’s children, considered the intermediate payment as KRW 150 million, not KRW 350 million, but KRW 350 million. However, there is no evidence that KRW 200 million was paid to the Plaintiff from the deceased’s account, and as BB is not a party to the contract, it is difficult to believe that the statement was made as it is. Accordingly, it is difficult to regard the real estate sales amount as KRW 2.5 million.

B) As long as the imposition of the principal tax is unlawful, the imposition of the penalty tax is also unlawful. Even if the imposition of the principal tax is lawful, the imposition of the penalty tax does not stipulate the legal basis for the calculation of the penalty tax in the notice of tax payment, but does not specify the additional amount of the unpaid penalty tax in relation to the penalty tax not paid in good faith, and

(b) Fact of recognition;

1) The main contents of a sales contract (No. 2) dated 20, 2009, which was submitted by the Plaintiff at the time of the return of transfer income tax following the transfer of the instant real estate, are as follows.

o Purchase price of KRW 2.320 million

Down payment of KRW 26 million (payment at the time of contract)

An intermediate payment of KRW 150 million (Payments 30, 2007)

Balance 1.90 million won (payment on August 17, 2009)

o Matters of special agreement

3. Confirmation on the registry that the maximum amount of debt (2 billion won) has been set (1.53 billion won in actual loan) as a result of confirmation on the registry (1.5 billion won in actual loan).

4. The rental deposit shall be deducted from any balance; and

5. A loan shall succeed to 60 million won and shall be repaid the remainder.

o A broker

-Central Real Estate Agent Office CCC

- Diplomatic Real Estate Agent Office DoD

2) The details of entry and withdrawal of money that appears to be related to the transfer of this case among the money withdrawn from the name of the plaintiff (xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx) of the money deposited in the name of the deceased and the agricultural bank account in the name of the deceased are as follows

Date

Details of withdrawal from the deceased’s account

Amount (won)

Jinay

Amount (won)

Jinay

on January 20, 2009

200,000,000

Check

50,000,000

Check

10,000,000

Check

on January 21, 2009

235,000,000

Check

on January 30, 2009

150,000,000

Check

100,000,000

Cash

100,000,000

Check

150,000,000

Check

on 17, 2009

28,000,000

Check

900,000,000

Check

70,000,000

Check

18,000,000

Check

2,000,000

Check

August 19, 2009

50,000,000

Check

40,000,000

Check

5,000,000

Check

15,000,000

Check

10,000,000

Check

3) After acquiring the instant real estate, the Deceased died on February 15, 2013, and the head of ○○○○ Tax Office conducted an inheritance tax investigation on the Deceased.

4) On October 14, 2014, the deceased’s AB made a written answer with the tax official belonging to the ○○○○○ Tax Office, which demanded KRW 2.6 billion. However, on the condition that the deceased’s discount was written, BB made a statement that “the deceased was KRW 2.32 billion on the condition that it was written on the condition that it was written on the condition that the contract was written on the condition that the deceased’s discount was changed. In addition, BB made up a written contract with the deceased and the plaintiff at the time of investigating the transfer income tax of this case in 2009, and the actual transaction amount was KRW 2.32 billion, and the actual transaction amount was KRW 2.52 billion. At the time of the intermediate payment and the check, and that “the principal was in existence at the time of the real estate contract.”

Facts that there is no dispute over recognition, Gap's 2, 7 evidence, Eul's 3, 5, 6, 7, 16 (including Serial Nos. 3, 5, 6, 16), and the purport of the whole pleadings.

C. Determination

1) The legislative intent of Article 26-2(1) of the former Framework Act on National Taxes is to extend the exclusion period of the imposition of national taxes to 10 years, in principle, in a case where there is an unlawful act, such as making it difficult for the tax authority to discover the taxation requirements of national taxes or forging false facts, while the exclusion period of the imposition of national taxes is five years in order to promptly determine tax relations, and it is difficult for the tax authority to expect the exercise of the imposition authority, as it is difficult for it to find out the omission report, and thus, it is difficult for the relevant national tax authority to extend the exclusion period of imposition of national taxes to 10 years. Therefore, "Fraud and other unlawful act" under Article 26-2(1)1 of the former Framework Act refers to a deceptive act which makes it impossible or considerably difficult to impose and collect taxes or other active act that makes it difficult to do so, without accompanying any other act, and it does not constitute simply failure to file a tax return or underreporting a false report under tax law or making it difficult to impose and collect taxes or remarkably difficult (see Supreme Court Decision 2015Du214.

4434, see, e.g., Supreme Court Decision 44434

The plaintiff submitted the sales contract of this case at the time of filing a transfer income tax return. If the sales contract of this case is false in light of the above legal principles, the plaintiff's act of filing a transfer income tax return constitutes fraudulent or other unlawful acts provided for in Article 26-2 (1) of the Framework Act on National Taxes. Thus, the exclusion period for exclusion from imposition due to the transfer of real estate of this case shall be 10 years. Thus, the issue of this case is whether

2) We examine whether the instant sales contract is false.

A) In an appeal litigation seeking the revocation of a disposition by asserting the illegality of an administrative disposition, the administrative agency that claims the revocation of the disposition has the burden of proving the legitimacy of the disposition (see, e.g., Supreme Court Decision 84Nu515, Jan. 22, 1985). The burden of proving the legality of the disposition should be proved by the tax authority that the taxable income exists and that the income is attributed to the pertinent taxable period (see, e.g., Supreme Court Decision 98Du1826, Feb. 25, 2000).

B) According to the evidence No. 2, No. 6, No. 11, and No. 14 of this case, the sales contract of this case entered down payment of KRW 260 million in the sales contract of this case, and the explanatory material of the building on the real estate (No. 1) which appears to have been prepared around the time of the transfer of the real estate of this case stated KRW 2.65 billion in the sales contract of this case. The deceased reported the acquisition value of the real estate of this case to ○○○○○○○○○○○○○○, and the fact that the sale contract of this case was made on July 30, 2009 with KRW 150,000,000,000 for KRW 200,000,000,000 for KRW 700,000,000 for KRW 100,000 for KRW 70,000 for 300,000 for 300,000.

However, in light of the above legal principles and the following circumstances, it is difficult to conclude that the sales contract of this case was a false sales contract with the above suspicion alone, and there is no other evidence to acknowledge it. Therefore, the exclusion period of imposition of this case is five years, and the disposition of this case is imposed after the lapse of May 31, 2010, which is the exclusion period of imposition, and its defect is serious and obvious. Accordingly, the plaintiff's primary claim is without need to further examine the remainder of the plaintiff's assertion, without having to further examine it.

(1) While the head of ○○○ Tax Office conducted an inheritance tax investigation on the deceased, BB made a statement that KRW 200 million, which was withdrawn on July 30, 2009, was an intermediate payment of the instant real estate, was the starting point in the process of proving the use of the land compensation of KRW 3.2 billion prior to the commencement of the deceased’s inheritance. However, BB made a reply not only to participate in the process of setting the sales price, but also to the effect that it was not well aware of the monetary management of the deceased at ordinary time when preparing a written answer (see subparagraph 10).

② At the time of the inheritance tax investigation, BB stated that at the time of the inheritance tax investigation, the Deceased paid KRW 260 million on July 20, 2009, KRW 350 million on July 30, 2009, KRW 990 million on August 17, 2009, and KRW 217 million on the obligation to return lease deposit and KRW 200 million on August 17, 2009. However, the above fact was stated that the Deceased succeeded to the obligation of KRW 70 million on the deposit and the obligation to return lease deposit.

Even under the influence of alcohol, the purchase price of KRW 2.517 billion, as claimed by the Defendant, is insufficient to KRW 2.52 million. In addition, the BB proposed that the deceased be on a scale so far as the deceased is too unsatisfyed. The witness did not know about the details of the use of the deceased’s land compensation. While driving, the deceased told the user of KRW 200 million. In the preparation of the contract, it does not know that he would have avoided tobacco outside of the contract, and it would be well what he would be. In addition, it would be necessary to set the price at a close rate, and the amount of money would be on a scale of 10 million. The testimony appears to have not been made by the deceased to have not asked EE to change KRW 100 million in cash. In light of the above contents, the testimony appears to have been based on the content and statement of the deceased’s account, rather than on his memory, at the time of the investigation of inheritance tax.

③ In the event the transferor prepares a so-called multi-unit contract for the purpose of reducing capital gains tax, this contract is ordinarily kept by the parties to the contract. Therefore, if the instant contract is deemed to be a multi-unit contract, the transferee, the deceased, also has the custody of this contract. In addition, the BB, the deceased’s son, submitted the instant sales contract at the time of inheritance tax investigation, and the court stated that there was no sales contract, other than the instant sales contract, stating that the sales price was KRW 2.52 billion, in addition to the instant sales contract.

④ The deceased withdrawn KRW 120 million on July 13, 2009, a week prior to the preparation of the instant sales contract, and the deceased withdrawn KRW 120 million on August 19, 2009, which was after the date of the remainder payment. In light of the above details of withdrawal, the deceased is presumed to have made a monetary transaction with the amount of money that he had made before and after the preparation of the instant sales contract. Therefore, it cannot be concluded that KRW 200 million on July 30, 2009, which was the date of the intermediate payment payment, was withdrawn on July 30, 2009, and among the issues checks, it cannot be concluded that the said KRW 200 million was an intermediate payment solely on the ground that EEE, among the real estate individuals, is commercialized.

(5) A thorough examination of the agricultural bank account in the name of the Plaintiff, the sale price of which was deposited, shall not be found from July 1, 2009 to December 31, 2009, when the cash KRW 100 million and the check at issue as part payments are deposited, and there is no data that KRW 100 million and the check at issue were paid to the Plaintiff’s neighbors.

6. The seller testified that the issue check was exchanged in cash upon the request of the deceased at this court, and then transferred it to the deceased. DDR on the buyer's side also confirms that the purchase price of this case was KRW 2.32 billion.

7) In relation to the special terms and conditions of the instant sales contract, the Defendant stated that he succeeds to the loan amount of KRW 600 million out of the balance, but the actual succession of KRW 700 million, the instant sales contract is argued to the effect that it is false. However, according to the instant sales contract, the instant sales contract was intended to include the collateral security obligation established on the instant real estate in the purchase price. As such, from the Plaintiff’s standpoint, it is not important for the Plaintiff to succeed to the deceased, who is the transferee. Therefore, it is difficult to conclude that the said sales contract was false solely on the grounds that the modified special terms and conditions were not reflected in the sales contract.

(8) At the time of the instant disposition, the Defendant evaluated the remainder of KRW 120 million as well, which was withdrawn from the deceased’s account on August 19, 2009. However, in this court, the Plaintiff asserted that the said KRW 120 million was withdrawn after the registration of ownership transfer of the instant real estate was completed, and thus, it was difficult to view the Plaintiff as part of the purchase price, and thus, was excluded from the part of the purchase price. Furthermore, the Defendant assessed the amount of KRW 60 million as a loan and the amount of KRW 200 million as a refund of the lease deposit as a part of the purchase price, but there was no evidence supporting that the obligation to return the lease deposit was KRW 20 million. In other words, the Defendant did the instant disposition on the basis of presumption

(9) If the deceased reported the acquisition value of the instant real estate to ○○○○ Viewing, the instant sales contract may be deemed false. However, there is room to regard the deceased as having reported the acquisition tax along with a sales contract stating false acquisition value in order to impose capital gains tax in the future.

3. Conclusion

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