Jeju District Court 209Guhap526 ( October 21, 2009)

Cho High Court Decision 2009Da0110 ( October 18, 2009)

reported as the transfer value under a false stamp contract shall be by fraud or other improper means.

In cases where a report is filed with the actual sales price and the sales price under other seal of approval contract, the purpose of the intentional tax evasion shall be deemed to exist, and the exclusion period of national tax imposition shall be ten years.

The contents of the decision shall be the same as attached.

1. All appeals filed by the plaintiffs are dismissed.

2. The costs of appeal are assessed against the Plaintiffs.

The judgment of the first instance is revoked. The defendant's disposition of imposing each transfer income tax against the plaintiffs on October 5, 2008 shall be revoked.

1. Circumstances of the disposition;

A. On May 2, 2002, the plaintiffs jointly acquired a forest land of 20,965 square meters (hereinafter referred to as "real estate of this case") in Seopo-si AAri 1840, Seopo-si, Seopo-si (hereinafter referred to as "the real estate of this case"), and on December 6, 2002, transferred all of the above shares to Ilpo-si, Inc. on December 6, 2002. On January 21, 2003, the plaintiff Jeonpo-B and the plaintiff KimCC reported capital gains tax by stating the purchase price of 66,00,000,000, transfer price of 99,000,000,000 as the sale price under each of the transaction approval forms used for each of the above registrations (refer to Article 3 (1) of the Act on Special Measures for the Registration of Real Estate).

B. Thereafter, the defendant confirmed that the plaintiffs acquired the real estate of this case in 253,50,000 won and transferred it in 355,100,000 won, and that the plaintiffs' preliminary return of capital gains tax was made at the sale price on the stamp contract which is not the real transaction price, on October 5, 2008, on the ground that the fraudulent act to which the exclusion period of imposition for 10 years under Article 26-2 (1) 1 of the Framework Act on National Taxes applies falls under "the case of evading national taxes by other illegal act," and thus, on October 5, 2008, the defendant imposed capital gains tax of 22,071,460 won for each of the plaintiffs (hereinafter

C. The Plaintiffs filed an appeal with the Tax Tribunal on December 24, 2008 regarding the instant disposition, but the Tax Tribunal dismissed their respective claims on March 18, 2009.

[Ground of recognition] Facts without dispute, Gap 1, 2 evidence, Eul 1, 4, 5 evidence (including each number), the purport of the whole pleadings

2. Relevant statutes;

It is as shown in the attached Form.

3. Whether the disposition taken on this occasion is lawful.

A. The plaintiffs asserted that the disposition of this case was unlawful since it was made five years after the exclusion period of the imposition authority, since the plaintiffs underreporting the transfer value with the purchase price stated in the approval form, and did not prepare and submit a false approval form, and thus their report of transfer income tax does not constitute fraudulent or other unlawful acts under Article 26-2 (1) 1 of the Framework Act on National Taxes.

However, Article 26-2(1)1 of the Framework Act on National Taxes provides that the exclusion period of the right to impose national taxes shall be ten years from the date on which the national taxes can be imposed. "Fraud or other unlawful acts" at this time means fraudulent or other active acts that make it impossible or considerably difficult to impose and collect taxes, and it does not constitute mere failure to file a return under tax law or failure to pay taxes without accompanying such acts (see Supreme Court Decision 97Do2429, May 8, 1998). However, considering that the taxpayer’s tax base is determined by the reported value, it is difficult for the taxpayer to file a false return and submit a false return with 00Do300,000,000,000,0000,000,000,0000,000,000,0000,000,000,000,000,000,000,000,000,000.

As to this, Article 162-2 (2) of the Enforcement Decree of the Income Tax Act recognizes that the plaintiffs' act should be interpreted to the same extent as that of the above Enforcement Decree even in the case of using a false double-contract only in the case of using a false double-contract. However, although the above Enforcement Decree of the Income Tax Act argues that since it should be interpreted to the same extent as that of the above Enforcement Decree, the plaintiffs' act does not constitute a "Fraud or other unlawful act", the above Enforcement Decree of the Income Tax Act only stipulates the improper method as "in the case of applying the real transaction which is not the standard market price with respect to the transfer value of real estate, not the standard market price," and there is no military interpretation about the exclusion period of the imposition of national taxes under the Framework Act on National Taxes, the above argument by the plaintiffs is merely an independent opinion, and therefore it is without merit.

B. Next, the plaintiffs asserted that the transfer of the real estate in this case is illegal since it is inevitable to prepare expenses for investment of DaD, which is the fraud of the plaintiff shipB, and it is not a transaction for the short-swing profit, in calculating the amount of tax, it should be based on the standard market price in the calculation of the amount of tax. The plaintiffs filed a preliminary return of transfer income tax according to the sales price under the concurrent contract where the transfer price higher than the standard market price was stated. Since the plaintiffs' report of transfer income tax does not constitute fraud or other unlawful act under Article 26-2 (1) 1 of the Framework Act on National Taxes

Comprehensively taking account of the overall purport of the arguments in evidence Nos. 4 and 5, it can be acknowledged that DaD's death from September 26, 2001 to brain salky and died on March 10, 2003. However, it cannot be viewed as "where it is deemed that it is not a transaction for the purpose of short-term profit in light of the acquisition or transfer of real estate and the situation of its use, etc. where it is transferred within one year from the acquisition due to unavoidable reasons" under Article 96 (4) of the Income Tax Act and Article 162-2 (4) of the Enforcement Decree of the same Act, based on the above circumstances, it cannot be viewed as "when it is deemed that it is not a transaction for the purpose of short-term profit in light of the acquisition or transfer of real estate and the situation of its use, etc." Accordingly, the plaintiffs' above assertion cannot be calculated based on the standard

C. The plaintiffs asserted that the disposition of this case was unlawful since the defendant was able to verify the fact immediately after the purchase and sale of the real estate of this case and only after the lapse of 5 years after the lapse of 5 years, since 10 years from the exclusion period of taxation imposition as to this case, there is no violation of any abuse of taxation right to this case's disposition made within the exclusion period. Thus, the plaintiffs' assertion is without merit.

D. Sub-committee

Therefore, since the plaintiffs were to evade national taxes due to "Fraud or other unlawful acts", the exclusion period of the right to impose capital gains tax on the transfer of real estate in this case falls under ten years. Since the disposition in this case was made before the exclusion period of the right to impose capital gains tax expires, the disposition in this case is legitimate.

4. Conclusion

Therefore, the judgment of the court of first instance is legitimate, and the plaintiffs' appeal is dismissed in its entirety due to the lack of grounds, and it is so decided as per Disposition.