Transfer 2014-0039 ( May 20, 2014)

The exclusion period for capital gains tax shall be 10 years from the exclusion period by deceit or fraudulent means.

As long as a false double contract is prepared and used, the exclusion period of imposition of capital gains tax due to the transfer of the land in this case shall be 10 years, and the contents of the judgment]

The exclusion period for national tax assessment under Article 26-2 of the Framework Act on National Taxes

2014Gudan12867 Revocation of Disposition of Imposing capital gains tax

AA

○ Head of tax office

April 24, 2015

May 22, 2015

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The Defendant’s disposition of imposition of capital gains tax of 2005 on August 13, 2013 against the Plaintiff shall be revoked.

1. Details of the disposition;

A. The leap○○○ was deceased on May 2008 】 The Plaintiff is one of its inheritors.

B. On December 2006, 2006 】. The ○○○○○○○○○○○○○○○○ in Gyeonggi-do ○○○○○○-si x the same Ri delivery x the same Ri delivery x x-1 (hereinafter “instant land”) was attached to a sales contract stating that he/she transferred the instant land to ○○○○○ billion. The Defendant scheduled the scheduled return of the capital gains tax for 2006 x ○○○○○○○○.

C. After the death of leap○○, the inheritor did not report inheritance tax, the Defendant conducted an inheritance tax investigation, and the fact that leap○○○ transferred the instant land to one other than her husband at 00 billion won x 1,005 x 1,000 billion won. The instant land did not constitute a disposal asset within two years prior to the commencement date of inheritance of the inheritee (e.g., May 2008 x.) by deeming that the instant land does not constitute a disposal asset within two years prior to the inheritance date of the inheritee, inheritance tax was imposed on the inheritor.

D. After that, according to the direction of the director of the regional tax office of ○○○○, the Defendant deemed that ○○○ transferred the instant land to ○○○ billion, as indicated in the above paragraph (b) x 12, 2006. The instant land is deemed as falling under the disposal assets within two years before the date of commencing the inheritance by the inheritee, and thus, the instant land was deemed as falling under the disposal assets within two years before the date of commencing the inheritance by the inheritee. The heir increased his inheritance tax.

E. Accordingly, the inheritors filed a lawsuit seeking revocation of the above inheritance tax by Seoul Administrative Court 2012Guhap17377, May 2012 】 (hereinafter “Seoul Administrative Court”), and the facts are as follows: “Cap○○ transferred the instant land at KRW 000 million.” The court submitted a real estate sales contract corresponding thereto; and the court accepted it 】 June 2013 】 (i) rendered a judgment revoking the disposition imposing the above inheritance tax by deeming that the instant land was not a disposal asset within two years prior to the commencement date of the inheritance; and (ii) rendered a judgment revoking the disposition imposing the inheritance tax by deeming that the instant land was not a disposal asset within two years prior to the commencement date of the inheritance

F. According to the above judgment, the Defendant deemed that ○○○ was an evasion of the transfer income tax for the year 2005 by fraud or other unlawful act, and thus, deemed that ○○○ was an evasion of the transfer income tax for the year 2005, x his heir on August 2013, 2005, imposed the Defendant’s transfer income tax for the year 2005, and subsequently on February 2014 x ex officio reduced ○○○○○○○ (the instant disposition was taken) exceeding the limit of the heir’s tax liability succession (the instant disposition

Facts that there is no dispute with recognition, Gap 1 through 8, Eul 1 through 4 (including various numbers if there is each number), the purport of the whole pleadings.

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The net ○○○ was transferred on June 2005 】. The instant land was transferred and did not report the transfer income tax until May 31, 2006, which was the deadline for filing the transfer income tax for the year 2005, which was the deadline for filing the transfer income tax for the transfer income tax for the year 2005. Therefore, this does not constitute fraud or other unlawful acts by a mere non-report. Therefore, the exclusion period for imposing the transfer income tax should be deemed seven years,

(b) Relevant legal principles;

Article 26-2 (1) of the former Framework Act on National Taxes (amended by Act No. 8139 of Dec. 30, 2006) provides for the exclusion period of imposition of national taxes. Article 26-2 (1) of the former Framework Act on National Taxes provides for the exclusion period of imposition of national taxes for ten years from the date on which the national tax is assessable if a taxpayer evades, obtains a refund or deduction by deceit or other unlawful means (Article 10-1) and seven years from the date on which the national tax is assessable if a taxpayer fails to file a tax base return within the statutory due date of return, and five years from the date on which the national tax is assessable if he/she falls under subparagraphs 1 and 2 (Article 12-3 (1) 1 of the Enforcement Decree of the Framework Act on National Taxes). Article 10-1 of the former Income Tax Act provides that a resident shall file a return on the tax base and amount of national tax with the head of the competent tax office for the year following May 13, 2009>

"Fraud and other unlawful acts stipulated in Article 9 (1) of the Punishment of Tax Evaders Act" refers to fraudulent and other active acts that make it impossible or considerably difficult to impose and collect taxes, and acts that do not simply require a report under the tax law or make a false report without accompanying any other acts (see, e.g., Supreme Court Decisions 95Do2653, May 9, 1997; 85Do1518, Mar. 8, 198). However, as long as a false two contracts, etc. are prepared and used actively, it can be viewed as using "Fraud and unlawful methods stipulated in Article 9 (1) of the Punishment of Tax Evaders Act" (see, e.g., Supreme Court Decision 97Do2429, May 8, 1998).

In light of the following circumstances that can be recognized by comprehensively taking account of the developments leading up to the instant disposition and the evidence as seen earlier, namely, the leap○○○ on December 2006 】 at the time of the preliminary return of the transfer income tax reverted to the Defendant in 2006, the said contract was a so-called double contract, which was entered in the actual contract date, the buyer and the sales price are different, the sales price was lower than KRW 00 million, and accordingly, the said transfer income tax was reported lower than the actual transaction amount. In light of the above, the deceased was deemed to have committed fraudulent means or other active acts that make it impossible or significantly difficult to impose and collect the transfer income tax while transferring the instant land.

Therefore, the exclusion period of imposition of capital gains tax following the transfer of the instant land shall be deemed ten years, and it is apparent that the instant disposition was conducted before the lapse of ten years from June 1, 2006, when the transfer income tax from the transfer of the instant land was imposed. Thus, the Plaintiff’s assertion is without merit.

3. Conclusion

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