any false registration different from the actual transaction shall be deemed to constitute fraud or other unlawful act.

The act constitutes fraud or other improper act if there is active concealment intention, such as preparing a false contract, without simply failing to report under the tax law or making a false report.

Article 26-2 of the National Tax Service Number Act

Daejeon District Court 2016Gudan174 Revocation of Disposition of Imposing Capital Gains Tax

OO

OO Head of the tax office

2016.21

2016.08.24

1. Details of the disposition;

A. On February 17, 2004, the Plaintiff entered into a sales contract with the AA and BB to purchase an OO-dong OO-type OO-type O-use (hereinafter “instant land”) from the OO-type corporation (the trustee in bankruptcy was declared bankrupt by the O-type mutual savings and finance company), and completed the registration of ownership transfer with respect to one third of each of the instant land on March 16, 2004 in the name of the Plaintiff, AAA and BB.

B. The Plaintiff, along with AA and BB, completed the registration of ownership transfer for the instant real estate to CCC on August 5, 2005 due to the sale and purchase on the same date. On September 1, 2005, the Plaintiff cancelled the said registration of ownership transfer on the grounds of cancellation of agreement on August 5, 2005, and completed the registration of ownership transfer by a medical corporation on September 1, 2005 under CCCD under the name of CCCD on August 5, 2005.

C. A certified tax accountant EE entrusted with the tax affairs reported the transfer income tax on the donation of the land of this case to the Defendant in the name of the Plaintiff as KRW 00 million on December 2005 (hereinafter “instant return”).

D. After conducting a tax investigation from August 21, 2014 to September 1, 2014, the Defendant: (a) concluded a sales contract with the Plaintiff on March 2, 2015 to sell 1.3 billion won of the Plaintiff’s share in the instant land to AA; (b) received a loan certificate of KRW 1.3 billion from AA; (c) on October 5, 2004, which converted KRW 80 million into a loan for consumption, deemed the transfer date of the instant land; and (d) deemed the said donation as the most false contract; and (c) the period for imposition of capital gains tax for the transfer income tax for the year 2004 by applying 10 years to the imposition (hereinafter “instant disposition”).

E. The Plaintiff filed a tax appeal on April 27, 2015, but was dismissed on December 3, 2015.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 3 (including virtual number), Eul evidence Nos. 1 and 6, the purport of the whole pleadings

2. The plaintiff's assertion

The Plaintiff issued AA a seal imprint and a certificate of personal seal impression to transfer ownership registration and loan obligations. AAA did not notify the Plaintiff at will, without completing the registration of ownership transfer under the name of AA, prepared a sales contract with a medical corporation CCC as purchaser and completed the registration of ownership transfer again, and completed the registration of ownership transfer again, and filed the instant report with the Defendant based on donation. As such, AA’s reporting act in this case is not based on the Plaintiff’s entrustment, and thus, it cannot be included in the Plaintiff’s act. Ultimately, the Plaintiff is merely a mere non-reported person with respect to the transfer of the instant land. The Defendant’s disposition based on the different premise is unlawful.

3. Determination of legality of the instant disposition

A. According to Article 26-2(1)1 of the Framework Act on National Taxes, where a taxpayer evades a national tax or obtains a refund or deduction by fraudulent or other unlawful acts prescribed by Presidential Decree (hereinafter referred to as “unlawful acts”), national taxes may not be imposed after the lapse of ten years from the date on which the national tax is assessable. Article 12-2(1) of the Enforcement Decree of the Framework Act on National Taxes provides that “unlawful acts” in Article 26-2(1)1 of the Act refers to acts falling under any of the subparagraphs of Article 3(6) of the Punishment of Tax Evaders Act, and Article 3(6) of the Punishment of Tax Evaders Act provides that “unlawful acts” means any of the following acts, which make it impossible to impose and collect taxes:

(2) The preparation and receipt of false evidence or false documents and the destruction of the account books and records. (5) The act of not preparing or keeping account books intentionally or intentionally, or the act of not preparing or keeping account books, the account books or the list of account invoices or the list of account invoices and the list of tax invoices under subparagraph 1 of Article 5-2 of the Restriction of Special Taxation Act. (6) The act of operating enterprise resource planning facilities or the act of manipulating electronic tax invoices under subparagraph 1 of Article 5-2 of the Restriction of Special Taxation Act is defined as the act of fraud or fraudulent act.

According to the above provisions, "unlawful act" does not merely mean a failure to report under the tax law or a false report without accompanying any other act, but rather means making the tax impossible or considerably difficult due to the addition of the circumstances showing the intention of active concealment, such as the failure to report or underreporting the taxable object and the preparation of a false contract. In addition, "unlawful act" referred to in this context includes not only the unlawful act committed by the taxpayer himself/herself, but also the unlawful act committed by the taxpayer, such as the agent or performance assistant, etc., who is benefiting from the expansion of the area of the act by entrusting the person liable for tax payment with the management of the relevant business.

B. On March 2, 2015, the Plaintiff’s illegal act was imposed on the Plaintiff’s 4th anniversary of the initial date of the exclusion period of imposition of the Plaintiff’s transfer income tax. However, the Plaintiff’s act of imposing the Plaintiff’s transfer income tax on the Plaintiff’s 200 million won and the above 4th anniversary of the above 4th anniversary of the fact that the Plaintiff’s act of imposing the Plaintiff’s transfer income tax on the Plaintiff’s 4th anniversary of the initial date of the exclusion period of imposition of the Plaintiff’s transfer income tax, based on the following circumstances, i.e., the Plaintiff’s acquisition of shares on the instant land under the name of the Plaintiff’s 1st of the 1st of the 2nd of the 2nd of the 2nd of the 4nd of the 2nd of the 2nd of the 2nd of the 2nd of the 4nd of the 2nd of the 2nd of the 2nd of the 2nd of the 2nd of the 3nd of the 4th of the 000 billion won.

4. Conclusion

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