Cho High Court Decision 201J 5136 (04.03)

It is difficult to see that there is a justifiable reason that cannot be caused by negligence of duty, and the imposition of additional tax is legitimate.

If it is unreasonable for a taxpayer to be unaware of his/her duty to do so, unless there is a justifiable reason that it is not unreasonable for him/her to be aware of his/her duty, or there is a circumstance that it is unreasonable for him/her to expect the performance of his/her duty to do so, or there is a reason that it is not unreasonable for him/her to do so.

2012Guhap1530 global income and revocation of disposition

Park AA

BB Director of the Tax Office

August 13, 2013

September 3, 2013

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The disposition taken by the Defendant on July 1, 201 by the Plaintiff in excess of OOO in the imposition of global income tax in 2006 shall be revoked.

1. Details of the disposition;

The following facts may be recognized by taking into account the following facts: evidence A 1-2, evidence A 2, evidence A 1-3-1 to 8, evidence A 4-1 to 6, evidence A 5-1 to 6, evidence A 6-1, and evidence A 12-1 and evidence A 12-2, and the whole purport of the statements and arguments.

(a) On April 13, 2006, the Plaintiff: CCC (hereinafter referred to as 'non-party company'); the land listed in the Schedule 1 to 6 owned by the Plaintiff (hereinafter referred to as 'the instant land'; hereinafter referred to as 'the instant land'; hereinafter referred to as 'the instant land'); and the land listed in the Schedule 8 and 9, and 10 (hereinafter referred to as 'the instant land before its subdivision'; 'the instant land' as 'the instant land'; 'the instant land before its subdivision' as 'the instant land'; 'the remainder from the date of its payment' as OO; and 'the remainder from the date of its payment' as 'the remainder' as 'the sales contract' to 2006, and 'the remainder' as 'the remainder' to 1000,0000,000,0000,000,000,000 won.

B. On April 13, 2006, the non-party company paid the above contract deposit (tentative down payment) to the plaintiff, and extended the payment date of the plaintiff and the down payment OOOOOOOOOO on May 18, 2006 to May 19, 2006, and Article 4 of the above contract "A and B cannot terminate this contract at will": Provided, That where the contract cannot be continued due to the violation by either party and Eul, if the buyer is the seller, the buyer pays the down payment (contract deposit and the down payment, the total sum of the down payment, and the OOO) and if the buyer is the buyer, the Eul's down payment (OOOO) is reverted to the plaintiff and can not claim the return thereof. The non-party company paid the down payment and the down payment (hereinafter referred to as "the contract deposit and the down payment") to the plaintiff on May 19, 2006.

C. On May 19, 2006, in order to guarantee the right to request the return of the penalty of this case against the non-party company, the Plaintiff agreed to establish a collateral on the land and building before the division, and on the same day, the Plaintiff registered the establishment of a collateral to the non-party company with the maximum debt amount under No. 44058, which was received by the OO registry office of the court. Meanwhile, the non-party company agreed to set up a pledge on the above collateral claim with the non-party company Dmutual Savings Bank (hereinafter referred to as the "non-party bank") and to obtain a loan from the non-party bank with the non-party bank, and completed the additional registration of the right to request a collateral on the same day, under No. 44509, the above OO registry, the creditor bank, and the non-party company.

D. On August 31, 2006, when the portion of the partitioned land was incorporated into the zone where public works are performed, the Plaintiff and the non-party company agreed on August 31, 2006 that the Plaintiff and the non-party company will not deduct the compensation for the divided land from the remainder of the sales contract, setting only the land and buildings of this case, excluding the divided land, from the divided land, as the object of the sales contract, and delete the special terms and conditions of the first sales contract, and maintain the contents of Article 4 of the sales contract amended on May 18, 2006 (hereinafter referred to as the "second sales contract"). The Plaintiff and the non-party company agreed not to deduct the compensation for the divided land from the remainder of the sales contract at a time of November 7, 2006.

E. Since then, the remainder payment date for the instant real estate was postponed several times, and the Plaintiff and the Nonparty Company finally set the remainder payment date on December 13, 2006, but the second sales contract was rescinded due to the failure to pay the remainder on the said payment date. The Nonparty Company drafted and issued a written waiver of all rights related to the instant real estate development project, which was being promoted on December 20, 206, to the effect that the second sales contract was rescinded due to the Plaintiff’s failure to pay the remainder on the same day, and that the penalty for breach of contract was attributed to the Plaintiff.

F. On October 11, 2007, the plaintiff filed a lawsuit against the non-party company seeking the cancellation of the registration of the establishment of a neighboring mortgage on the land in this case, and filed a lawsuit against the non-party bank seeking the cancellation of the additional registration of the above right to collateral security (right to collateral security). The judgment accepting the claim against the non-party company was finalized around that time, and the claim against the non-party bank was accepted at the appellate court, and the non-party bank appealed to the appeal but was dismissed on January 16, 2009. In addition, the plaintiff filed a lawsuit seeking the cancellation of the right to collateral security (right to collateral security) under the name of the non-party company and the right to collateral security (right to collateral security) under the name of the non-party bank, and the above judgment

G. After conducting a tax investigation with the Plaintiff from April 27, 201 to May 26, 2011, the commissioner of the regional tax office confirmed that the Plaintiff was not reported as at the time of the final return of global income tax for 2006, the sum of the penalty of this case, interest income OOOOO, and dividend income OOOOOOOOO won received by the Plaintiff upon the cancellation of the instant sales contract, and notified the Defendant on June 28, 201, and the Defendant imposed global income tax for 2006 on the Plaintiff (hereinafter “instant disposition”).

H. The Plaintiff dissatisfied with the instant disposition and filed an objection with the OO regional tax office on August 30, 201, but the OO regional tax office dismissed the said objection on September 27, 201. The Plaintiff filed a request with the Tax Tribunal on November 24, 2011, but the Tax Tribunal dismissed the Plaintiff’s request on April 3, 2012.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) Of the OO members that the Plaintiff received as the down payment from the non-party company, the OO members shall not be deemed to have received the repayment of the loan that the Plaintiff lent to the representative E of the non-party company on June 7, 2006, and shall not constitute penalty.

2) Even if the above amount of OOO won is included in the down payment of the second sales contract with the non-party company, the plaintiff suffered losses equivalent to the amount of KRW 2007 of the above sales price and the real estate in 2008, and KRW 2009 of the standard market price in 2009, and KRW OOOO or KRW OOOO under the Income Tax Act amended in 2007, because the plaintiff did not sell the real estate in 2006 but sold the real estate in 2007, thereby causing additional loss of capital gains tax equivalent to KRW OOO in selling the real estate in 207. Each of the above losses is a payment itself, which becomes the content of the original contract, and does not exceed the amount of the above other losses, so it cannot be deemed that the penalty has been paid to the plaintiff.

3) Even if the penalty of this case constitutes other income, it cannot be deemed that the penalty of this case belongs to the Plaintiff unless the additional registration of the right to collateral security in the name of the non-party company established on the instant real estate as collateral and the right to collateral security in the name of the non-party bank was cancelled. Therefore, the time of receiving the penalty of this case is unlawful on August 6, 2009, on the ground that the judgment that the registration of cancellation was made on the registration of the right to collateral security and the additional registration of the right to collateral security was made on December 13, 2006.

4) In addition, in the event that the Plaintiff had no intent of tax avoidance, and the Plaintiff was in dispute with the existence of penalty as in the instant case, the taxpayer should be deemed to have justifiable grounds for failing to perform his/her duty. As such, the part imposing penalty among the instant disposition is unlawful.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) As to the first argument

According to Gap evidence No. 7 (Written Notice of Date of Cash Repayment), EE, the representative director of the non-party company, shall prepare a letter of commitment to pay cash from the plaintiff on June 7, 2006, and until August 16, 2006, each letter of commitment to pay cash: Provided, That if the non-party company fails to pay by August 16, 2006, each letter of commitment to waive all the main complex site of OO-dong Construction, OO-dong Construction, OO-dong Construction, the name of the non-party company, the seal of the personal name, the second letter of commitment, the second letter of commitment to pay cash from the plaintiff on June 7, 2006, and the seal of the representative director may be recognized.

According to the above facts, the plaintiff agreed to lend OOOO to Switzerland on June 7, 2006, and POE agreed to pay the above loan by August 16, 2006, and the non-party company agreed to assume the obligation to pay it jointly with E. However, it is insufficient to recognize that the plaintiff received OOOO from the non-party company by May 19, 2006 is not the down payment of the contract of this case, but the repayment of the above loan is not the down payment of the contract of this case, and there is no other evidence to prove otherwise.

Rather, as seen earlier, on April 13, 2006, the Plaintiff agreed on the same day, and the down payment OOOOOOOOOO on May 18, 2006, and the lending date of the loan was made on June 7, 2006, which was after the payment date of the above contract and the down payment, and even according to the second sales contract, there was no agreement as to the unpaid portion of the above contract and the down payment, and on the premise that the above contract and the down payment were fully paid, the Plaintiff agreed on the amount and payment date of the remainder on the premise that the above contract and the down payment were fully paid. In the lawsuit claiming cancellation of the registration of the establishment of a mortgage against the non-party company, the Plaintiff asserted that both the above contract and the down payment were reverted to the Plaintiff and the down payment were completed and the judgment was finalized, and it is difficult to view that the Plaintiff’s OOOOOOOO which received from the non-party company was reasonable and reasonable in full view of the agreement and the payment of the loan.

2) As to the second argument

A) Article 21 (1) 10 of the former Income Tax Act (amended by Act No. 9897 of Dec. 31, 2009) provides that penalty or compensation received due to a breach or termination of a contract shall be other income, and Article 41 (3) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 19890 of Feb. 28, 2007, hereinafter the same) provides that the term “liability penalty or compensation” in Article 21 (1) 10 of the former Enforcement Decree of the Income Tax Act provides that the compensation received due to a breach or termination of a contract on property rights refers to the value of the money or other goods to compensate the damages exceeding the payment itself which forms the original contents of the contract, and in this case, if the amount of money, etc. returned due to a breach or termination of a contract does not exceed the total amount paid initially under the contract, it shall not be regarded as the value of money, etc. exceeding the original payment itself.

The term "damage exceeding the damages to the payment itself which is the contents of the future contract" refers to the amount of damages exceeding the actual reduced amount of the property incurred by the breach or termination of the contract, i.e., the damage that brings about an increase in the number above the preservation of the damage itself, and therefore the compensation corresponding to the compensation or restitution of the actual damage does not constitute this.

B) It is difficult to view that the damage equivalent to the difference between the sale price of the instant real estate claimed by the Plaintiff and the market price is the damage incurred due to failure to obtain performance benefits that would have been incurred if the second sale contract had been properly implemented. Moreover, even if the Plaintiff bears capital gains tax equivalent to the sale price of the instant real estate after January 1, 2007 when the Plaintiff sells the instant real estate after January 1, 2007, it is only an abstract damage premised on the situation in which the sales contract was concluded at an unspecified point in the future, and it is not an active and real damage that was incurred on the performance itself. Accordingly, the Plaintiff’s assertion on this part is without merit.

3) As to the third argument

In order to ensure that income has been realized, even if it is not necessary until the income has been realized, it is considerably mature and confirmed in the possibility of realizing the income, and therefore, it is merely formed without reaching this degree. The existence of income cannot be said to have occurred, and whether the right to generate income has become mature and confirmed can not be uniformly determined, and it is necessary to comprehensively consider the specific nature and contents of individual rights and the legal and de facto matters (see, e.g., Supreme Court Decision 96Nu200, Apr. 8, 1997).

According to the above facts, even if the plaintiff filed a related civil lawsuit against the non-party company and the non-party bank seeking the cancellation of the registration of the establishment of the above neighboring mortgage and the additional registration of the pledge of the neighboring mortgage after the cancellation of the sales contract, as seen above, ① was paid in full before the cancellation of the second sales contract, and managed and controlled the penalty of this case. ② The amount of the penalty of this case was determined as the contract deposit in full, and ② the amount of income was objectiveized. ③ The non-party company did not pay the remainder by December 13, 2006, and prepared and delivered a certificate confirming the cancellation of the sales contract of this case on the same ground. ③ The non-party company did not pay the remainder by December 13, 2006, and prepared and delivered a certificate confirming the cancellation of the sales contract of this case on the same date. The right to receive the penalty of this case on December 13, 2006, which is the date of cancellation of the above sales contract. Therefore, the defendant's assignment of the other income of this part is legitimate.

4) On the fourth argument

Under the tax law, in order to facilitate the exercise of taxation rights and the realization of tax claims, additional tax is an administrative sanction imposed in accordance with the law in cases where a taxpayer violates a return and tax liability, etc. as prescribed by the law without justifiable grounds, and it is unreasonable for the taxpayer to be unaware of his/her duty, and it is unreasonable for the taxpayer to be aware of his/her duty. Thus, unless there are justifiable grounds to believe that it is unreasonable to expect the party to fulfill his/her duty or that it is unreasonable to expect the party to fulfill his/her duty, additional tax should be imposed for the failure to fulfill his/her duty under the tax law (see, e.g., Supreme Court Decision 2001Du8100, Feb.

As seen above, the second sale contract was canceled on December 13, 2006 due to the non-party company's default, and the income for the penalty of this case was reverted to the plaintiff, and the right to the penalty of this case was confirmed as to the penalty of this case. Moreover, in light of the fact that there is no reason to deem that there was an obstacle to reporting and paying the income for the penalty of this case as the penalty of this case was already managed and controlled by the non-party company after receiving payment from the non-party company, and there was no reason to believe that it was unreasonable to expect the plaintiff to fulfill the duty of tax payment, etc. Therefore, it is difficult to deem that there was a justifiable reason to believe that it was unreasonable

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.