Cho-2015-west-1771 (2015.07)

A request for financial transaction information is difficult to be deemed to constitute a tax investigation.

The "request for the provision of financial transaction information" is difficult to be deemed to constitute a tax investigation, and where the report is made to the house and the actual resident has been living in the house although he/she was well aware of the fact that it was not used for the house,

Prior notice of tax investigation and application for postponement thereof under Article 81-7 of the Framework Act on National Taxes

2015Guhap75619 Revocation of Disposition of Imposing capital gains tax

○ ○

○ Head of tax office

September 1, 2016

November 3, 2016

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 imposing capital gains tax of KRW 2,126,54,470 (including additional tax of KRW 721,682,450) for the Plaintiff on January 2, 2015 shall be revoked.

1. Details of the disposition;

A. As the Plaintiff’s ○○○ died on November 17, 1999, the Plaintiff acquired land and above-ground buildings located in ○○○○-dong, Seoul, 546-7 (hereinafter “instant real estate”).

B. On September 27, 2013, the Plaintiff transferred the instant real estate to ○○○, Inc. with KRW 7.5 billion. On November 20, 2013, the Plaintiff reported and paid KRW 447,012,053 of the capital gains tax calculated by applying the “non-taxation and special deduction rate for long-term holding (80%) on the premise that the instant real estate is a house, based on the premise that it is a house.” On November 20, 2013, using the “non-taxation and special deduction rate for long-term holding

C. From October 10, 2014 to December 15, 2014, the Defendant conducted a tax investigation with respect to the Plaintiff (hereinafter “instant tax investigation”), and deemed that the Plaintiff filed a tax return undermining the transfer income tax by pretending that the instant real estate was one house for one household, although it was used as a commercial building at the time of transfer. On January 2, 2015, the Defendant imposed and notified the Plaintiff (hereinafter “instant disposition”) of the transfer income tax on KRW 2,126,54,470 (including additional tax for unfair underreporting, KRW 721,682,450) calculated by applying the long-term possession special deduction rate to 30% of the transfer value of the instant real estate as the tax base, and imposed and notified the Plaintiff of the transfer income tax on KRW 2,126,54,470 (hereinafter “instant disposition”).

D. The Plaintiff appealed to the instant disposition and filed an appeal with the Tax Tribunal, but the Tax Tribunal dismissed the Plaintiff’s appeal on July 7, 2015.

[Ground of recognition] Facts without dispute, Gap evidence 1-1, 2, Gap evidence 2, 3, 4, Gap evidence 5-1, 2, Eul evidence 1 and 2, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The instant tax investigation is unlawful for the following reasons, and the instant disposition based on an illegal tax investigation is also unlawful.

① The Defendant’s collection of financial transaction information by sending official notices to △△ Bank Co., Ltd. (hereinafter “△△”) and △△ Bank Co., Ltd. (hereinafter “△△ Bank”) around September 30, 2014, which is the starting date of the investigation period, around October 10, 2014, is illegal since it violates Article 81-7(1) of the Framework Act on National Taxes and Article 81-8(1) of the same Act, which stipulate the duty of advance notice, and the limitation of the investigation period, is against the duty of advance notice.

② Although it is possible to inquire into only the financial transaction information on a specific store in order to conduct an investigation into capital gains tax, the Defendant prepared a false official document as if he/she conducted an investigation into inheritance tax on September 30, 2014 and October 15, 2014, and inquired into the head office of a financial institution en bloc. On October 6, 2014, the Defendant collected financial transaction information on Hong○, a third party, who is irrelevant to the instant disposition, from the instant disposition. This is unlawful as it violates Article 4(1) of the Act on Real Name Financial Transactions and Confidentiality (hereinafter “Financial Real Name Act”) and Article 83 of the former Inheritance Tax and Gift Tax Act (amended by Act No. 1357, Dec. 15, 2015; hereinafter “former Inheritance Tax and Gift Tax Act”).

③ Since the subject of the instant tax investigation belongs to the transfer income tax for 2013 years, the Defendant’s right to ask questions and investigate may be exercised only for the data of 2013 years. However, on September 30, 2014, the Defendant entered the subject period into “from January 1, 2009 to December 31, 2013” on the Plaintiff’s financial transaction information, and on October 15, 2014, entered the subject period into “from January 1, 2014 to October 31, 2014,” and additionally made an additional inquiry into financial transaction information. This is a violation of Article 81-9 of the Framework Act on National Taxes, which prescribes the restriction on the extension of the scope of the tax investigation, and thus is unlawful.

(4) The tax investigation period has been extended unless there is a ground to extend the tax investigation period, which is unlawful as it violates Article 81-8 (1) of the Framework Act

2) The Plaintiff merely filed a false report based on mistake and did not intentionally prepare and submit a false document, and cannot be deemed to have filed a false report due to the lack of awareness of the outcome of tax evasion or the intent of tax evasion. As such, the portion of the penalty tax for unlawful underreporting among the disposition of the instant case is unlawful, and the portion exceeding the amount corresponding to the general underreporting penalty tax should be revoked.

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

1) Facts concerning the tax investigation of this case

(A) On September 25, 2014, the Defendant issued a prior notice of tax investigation to the Plaintiff on the following: (a) the tax item subject to investigation: (b) the actual investigation of capital gains tax (direct) and the period subject to investigation: 2013; (c) the investigation period: from October 10, 2014 to October 29, 2014 (20 days); and (d) the investigation period: the investigation period: the suspicion of failure to report or non-report (transferable real estate: the instant real estate).

(B) On September 25, 2014, the Defendant requested the director of ○○ Regional Tax Office to approve the verification of the financial transaction site from January 1, 2009 to December 31, 2013 of the Plaintiff’s spouse, ○○○○, and the inquiry period, on the grounds that it is necessary to verify the leased income and the deposit money of the instant real estate and to determine whether the Plaintiff resided in the instant real estate in order to investigate the transfer income tax against the Plaintiff. On September 29, 2014, the director of ○○ Regional Tax Office approved the Defendant’s financial transaction site verification on September 29, 2014.

(C) On September 30, 2014, the Defendant entered ○○ Central Branch of △△ Bank, △△○○○○ branch, ○○○○ branch, △△○○○○○○○ branch, △○○○○○○○○ branch, ○○○○ branch, ○○○○○ branch, ○○ Bank, ○○○○○○○○○ branch, and ○○○○○○ branch as the recipient, and Article 4(1)2 of the Act on Real Name Financial Transactions, Article 32(4) of the former Use and Protection of Credit Information Act (amended by Act No. 13216, Mar. 11, 2015; hereinafter referred to as the “former Credit Information Act”), as the legal basis for requesting the provision of financial transaction information to the Plaintiff and the Plaintiff’s spouse, respectively, and demanded the provision of the following information on financial transactions to the Plaintiff and the Plaintiff’s spouse, respectively.

(Omission of Contents of Request)

(D) Accordingly, on October 1, 2014, △△ Bank provided the Defendant with financial information, such as the Plaintiff’s details of transactions, copies of slips, and check presentation information, and on the same day, △△ Bank provided the Defendant with financial information, such as the Plaintiff’s details of transactions.

(E) On October 6, 2014, the Defendant demanded the Defendant to provide financial transaction information at the ○○○○ branch of △△ Bank, to the effect that the remitters of the following transaction details were changed. Accordingly, on October 17, 2014, the ○○ branch of △○ Bank, which was the remitters of the following transaction details, provided the Defendant with the Defendant’s personal information.

(F) On October 13, 2014, the Defendant requested the director of the regional tax office of ○○ Regional Tax Office to approve the extension of the period subject to on-site check of financial transaction to extend the period from January 1, 2009 to October 31, 2014, and obtain approval from the director of the regional tax office of ○○ Regional Tax Office.

(G) On October 15, 2014, the Defendant: (a) stated each of the following financial transaction information on the Plaintiff and his spouse’s ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ Center as the recipient; (b) stated Article 4(1)2 of the Act on Real Name Financial Transactions; and Article 32(4) of the former Credit Information Act as the legal basis for the demand; and (c) stated “an inheritance tax investigation” as “for use.”

(Omission of Contents of Request)

(h) Accordingly, on October 16, 2014, △△ Bank provided the Defendant with financial information, such as the Plaintiff’s details of transactions.

(i) Although a public official belonging to the Defendant used the instant real estate as a commercial building and used for commercial purposes, the entire building as a commercial building on the first floor is suspected of tax evasion by applying the tax exemption of one household, deeming that the entire building constituted a house, and conducted a tax investigation with respect to the Plaintiff from October 10, 2014.

(j) The Defendant extended the period of investigation from October 30, 2014 to November 18, 2014 pursuant to Article 81-8(1)2 of the Framework Act on National Taxes on the grounds that on-site verification, etc. is necessary, for 20 days, and notified the Plaintiff on October 24, 2014.

(k) On November 5, 2014, the Plaintiff filed an application for the suspension of tax investigation from November 5, 2014 to December 4, 2014 on the grounds of the collection of explanatory materials. The Defendant suspended the tax investigation pursuant to it and resumed the investigation on December 3, 2014 (the period of investigation changed following the suspension and resumption of the tax investigation is from October 10 to December 15, 2014).

(l) On November 17, 2014, the Defendant requested the director of ○○ Regional Tax Office to deliberate on the tax offense investigation by the Plaintiff on the grounds that the Plaintiff constitutes the subject of the investigation of the tax offense. As a result of deliberation by the Deliberation Committee, the investigation of the Plaintiff’s tax offense was approved, and the investigation of the Plaintiff was converted into the investigation of the tax offense on December 4, 2014.

(m) The "Guidelines for Investigation and Management of Property Tax 2014, which is the internal guidelines of the National Tax Service, provides that the point of time for initial inquiry concerning the point of time of request for financial transaction information shall be the "after prior notice of tax investigation", and the final date of inquiry shall be the "date of termination of investigation period"

2) Current status of the instant real estate and details of the use thereof, and relevant statements

(A) Of the instant real estate, the part of the building (hereinafter “instant building”) consists of 83.7 square meters in underground floors, 83.7 square meters in one story, and 47.5 square meters in two stories, and the use of the building is indicated as a house in the public record, such as a certified copy of the building or a building ledger.

(B) From around 2004 to July 31, 2010, the Plaintiff leased the entire building of this case to Red ○○○, and Hong ○○ used the entire building of this case as ○○○○.

(C) From November 1, 2010 to September 23, 2013, the Plaintiff leased the entire building of this case to sexual ○○○. The gender ○○ used the entire building of this case as ○○ Market’s workplace.

(D) The lease contract drawn up on August 18, 201 between the Plaintiff and Sung ○○ is indicated as the first floor of the instant building and the second floor area of 131.2 square meters, and the lease contract drawn up on April 5, 2012, the object of lease is indicated as the area of 83.7 square meters of the first floor of the instant building.

(E) On November 1, 2010, in the course of the tax investigation, Sung○○ stated that the entire building of this case, including underground floors, was leased from November 1, 2010 to be used as a workplace, and that the entire building was in a arche for the purpose of using it as a commercial building. In fact, it was difficult to live as a house. In addition, even if the entire building of this case was continuously leased and used as a place of business, it was stated that the object of the lease was 83.7 square meters of the area of the first floor of the building of this case, unlike the fact in the lease agreement of April 5, 2012, the lessor, who was the lessor, stated that the leased object was 83.

(F) An employee Kim ○, working at the tenant's workplace, prepared and submitted a written confirmation to the effect that the entire building of this case was used as the place of business of ○○ Market and that there was no person living in the place of business.

(G) From September 8, 199 to September 30, 2013, the Plaintiff was registered as a resident at the location of the instant real estate from September 8, 1999 to September 30, 201, but did not reside at the location of the instant real estate after at least 204.

(H) The Plaintiff, upon undergoing a tax investigation on October 10, 2014, stated that the reason for applying one house for one household upon reporting the instant transfer income tax was that the area used as a commercial building was smaller than 131.2m2m2 in total of the remaining underground floors and the two floors used as a house with the first floor of 83.7m2m2 on the ground that the Plaintiff reported the instant transfer income tax. In addition, the Plaintiff made a false statement to the effect that, since before 1999, an underground floor of the instant building was used as a house for the Plaintiff’s family, the first floor was used as a house, and the second floor was leased as a commercial building after 204’s family residing in the second floor and her parents returned to her parents, the Plaintiff made a false statement to the effect that 1st floor was leased as a commercial building on the 201m200m20,0000,0000 among the rent areas reported to 201m213.27.

(E) On December 12, 2014, after the Plaintiff was investigated as a suspected criminal suspect on December 12, 2014, the Plaintiff was aware of the fact that the entire real estate of this case was leased and used as a commercial building, and that the real estate of this case was not leased thereafter, and that the Plaintiff did not reside therein. On April 5, 2012, the Plaintiff stated to the effect that, at the time of the formation of the contract, the Plaintiff was unaware of the fact at the real estate brokerage office.

[Reasons for Recognition] The facts without dispute, Gap evidence 1-2, Eul evidence 3, Eul evidence 6-1 through 4, Eul evidence 4, 5, Eul evidence 6-1, 2, Eul evidence 7-1, 2, Eul evidence 8-1 through 5, Eul evidence 9-1, 2, Eul evidence 10-1, 11-2, Eul evidence 1-1, 12-1, 12-2, Eul evidence 12-1, 13-1 through 3, Eul evidence 14-1, 14-3, and Eul's whole purport of pleading

D. Determination

1) Whether the instant tax investigation was unlawful

A) Determination as to the Defendant’s assertion that the collection of financial transaction information violates Articles 81-7(1) and 81-8(1) of the Framework Act on National Taxes

First, it is examined whether the collection of financial transaction information by the defendant constitutes a tax investigation.

The authority of tax officials to ask questions to taxpayers (person who is deemed liable for tax payment) or related persons (person who makes a transaction with a taxpayer, a trade association or similar organization to which a taxpayer has joined, a withholding agent, or a donation receipt issuer) or to investigate or order the relevant account books, documents or other things or to submit them is based on individual tax laws such as Article 170 of the former Income Tax Act (amended by Act No. 13558, Dec. 15, 2015; hereinafter referred to as the "former Income Tax Act"), Article 122 of the Corporate Tax Act, Article 74 of the Value-Added Tax Act, and Article 74 of the Framework Act on National Taxes provides for the rights of taxpayers corresponding to the authority of tax officials under Chapter 7, "The Framework Act on Local Taxes" provides for the rights of taxpayers corresponding to the authority of tax officials under Chapter 7, and Article 81-2 (2) 1 of the Framework Act on National Taxes, and Article 81-2 (2) 2 of the Framework Act on National Taxes provides for the procedures and scope of investigation or tax investigation.

On the other hand, the collection of financial transaction information by tax authorities is stipulated in Article 4 of the Act on Real Name Financial Transactions, Article 6 of the Act on the Submission and Management of Taxation Data, Article 83 of the former Inheritance Tax and Gift Tax Act, and Article 83 of the former Inheritance Tax and Gift Tax Act. The request for financial transaction information under Article 6 of the Taxation Data Act or the comprehensive inquiry into financial property under Article 83 of the former Inheritance Tax and Gift Tax Act is made by the Commissioner of the National Tax Service (including the commissioner of a regional tax office) and the request for the provision of financial transaction information under Article 4 of the Act on Real Name Financial Transactions is made by the head of the competent government office, and Article 4 of the Act on Real Name Financial Transactions is stated in the "written request for the provision of each financial transaction information prepared by the defendant" as the "written legal basis for the request"

The main sentence of Article 4(1) of the Act on Real Name Financial Transactions provides that no employee of a financial company, etc. shall provide or divulge financial transaction information, etc. to any other person without the consent of the holder of the title deed, and no person shall request an employee of a financial company, etc. to provide financial transaction information, etc., and the proviso of the same Article provides that where it falls under any of the following subparagraphs as an exception, it may provide or demand the provision of financial transaction information, etc. to the minimum extent necessary for the purpose of use, and that the head of the competent government office shall provide taxation data, etc. which must be submitted under the tax-related Acts and subordinate statutes as one of the exceptional reasons, and that "the provision of transaction information, etc. necessary for the head of the competent government office to verify inherited or donated property, confirm evidence to prove suspicion of tax evasion, inquire about delinquent taxpayers' property, and provide transaction information,

On the other hand, the "tax investigation" stipulated in Article 170 of the former Income Tax Act, Article 122 of the Corporate Tax Act, Article 74 of the Value-Added Tax Act is an exercise of the right to ask questions and investigation, and the other party is a taxpayer or a related person [specificly, a taxpayer or a person who is deemed liable for tax payment, a withholding agent, a tax manager, a person who is liable to submit a statement of payment (or a list of total calculation by seller and seller), a person who is deemed to have a transaction with a taxpayer, a business partnership organized or joined by a taxpayer, or a person who has issued a receipt for donation, etc.], while the reason for exercising the right to ask questions and investigation is defined as a "where necessary for performing his/her duties", the "request for financial transaction information" under the Real Name of Financial Transactions Act is defined as a "financial company, etc., not a taxpayer or a related person," and the reason for requesting the provision is defined as limited in each subparagraph of Article 4-2

In addition, Article 4-2 of the Act on Real Name Financial Transactions imposes an obligation on a financial company, etc. to notify the nominal holder of the financial transaction information ex post, so it is difficult to view that the provision of Article 81-7 of the Framework Act on National Taxes that provides for the duty to notify the taxpayers of the duty to provide the financial transaction information applies mutatis mutandis to the request for the provision of the financial transaction information. Moreover, the Act on Real Name Financial Transactions does not have any separate provision on the timing of the request for the provision of the financial transaction information, and only sets the time of the request for the financial transaction information from the "Guidelines for Property Tax Investigation and Management", which is the internal provision of the National Tax Service, to the "date of the investigation period after the prior

In full view of the contents and purport of the relevant provisions, the "request for provision of financial transaction information" under the proviso of Article 4 (1) and Article 4 (2) of the Act on Real Name Financial Transactions may be deemed as a tax investigation within the meaning of "investigation necessary for the imposition and collection of taxes". However, it is reasonable to view that it is difficult to regard it as a tax investigation under tax laws governed by the provisions of Article 170 of the former Income Tax Act, Article 122 of the Corporate Tax Act, Article 74 of the Value-Added Tax Act, Article 74 of the Framework Act on National Taxes, and Chapter 7 of the Framework Act on Local Taxes.

Therefore, since the Defendant’s request for financial transaction information does not constitute tax investigation under tax law, this part of the Plaintiff’s assertion on a different premise is without merit.

B) Determination as to the Defendant’s assertion that the collection of financial transaction information violates Article 4(1) of the Act on Real Name Financial Transactions and Article 83 of the former Inheritance Tax and Gift Tax Act

Article 4 (2) of the Act on Real Name Financial Transactions and Confidentiality provides that a person who requests the provision of financial transaction information, etc. pursuant to subparagraph 2 of paragraph (1) of the same Article shall make a request to a specific store of a financial company, etc. in accordance with the standard form prescribed by the Financial Services Commission, including "personal information of the name holder (subparagraph 1), the transaction period subject to the request (subparagraph 2), the legal basis for the request (subparagraph 3), the purpose of the use (subparagraph 4), the details of transaction information, etc. that the request is made (subparagraph 5), the name and position of the person in charge of the institution and the person in charge (subparagraph 6)". Article 10 of the former Enforcement Decree of the Act on Real Name Financial Transactions and Confidentiality (amended by Presidential Decree No. 25790, Nov. 28, 2014) provides that "personal information of the name holder" referred to in each subparagraph means the name (title 1), resident registration number (title 2), the resident registration number (title 3), the number (title 4), and other financial institution.

On September 30, 2014, the Defendant sent a written request for the provision of financial transaction information to the ○○ Central Branch of △△ Bank, △△ Bank Branch, ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○, ○○○○○ Branch, ○○○○○ Bank, ○○○○○○○○○○ branch, ○○○ Bank, ○○○○○○○○ branch on October 6, 2014, ○○○○○ branch on October 15, 2014, ○○○○ branch of △△△△△ Bank, ○○○○○○○ branch, and ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○, respectively. In full view of the aforementioned evidence, each of the above written requests for financial transaction information constitutes a standard form prescribed by the Financial Services Commission under Article 4(2) of the Real Name Financial Transactions Act.

As to this, the Plaintiff asserts to the effect that each request for the provision of financial transaction information from September 30, 2014 and October 15, 2014 was not made, and thus, it constitutes the general meeting of the head office. However, according to the above provision, the account number is not necessarily required to be stated in the written request for the provision of financial transaction information, but is only one of the various items to be specified in the name holder’s personal information, and the financial transaction information that can be requested to be provided pursuant to Article 4 of the Act on Real Name Financial Transactions is not construed to limit the details of transactions of a specific account.

In addition, the Plaintiff alleged that the request for financial transaction information made on October 6, 2014 was unlawful in collecting and collecting the financial transaction information from a third party. However, as seen earlier, it verified the personal information of the account that is a remitter of a specific transaction among the Plaintiff’s transaction details, and it cannot be deemed that the third party’s financial transaction information was requested irrelevant to the Plaintiff.

However, there is a fact that the defendant stated that the tax investigation of this case is based on the plaintiff's suspicion of tax evasion of transfer income tax. Thus, even if the plaintiff acquired the real estate of this case, it is erroneous that the plaintiff stated the purpose of use "the inheritance tax investigation" as "the inheritance tax investigation". On the other hand, the "legal ground for each of the above requests" includes Article 4 of the Inheritance Tax and Gift Tax Act, not Article 83 of the former Inheritance Tax and Gift Tax Act, and the contents of the transaction information required are specified. Thus, it is obvious that it is the request for financial transaction information under Article 4 of the former Inheritance Tax and Gift Tax Act, and it does not seem to fall under the general inquiry of financial assets that deviate from the provisions of Article 83 of the former Inheritance Tax and Gift Tax Act. Thus, it is difficult to see that such procedural defect is significant even if the plaintiff erroneously stated the purpose of use.

Therefore, the defendant's request for each of the financial transaction information provided by the defendant constitutes a request for the provision of financial transaction information to a specific store under Article 4 (1) and (2) of the Act on Real Name Financial Transactions, and it is difficult to deem that there is an error in law as to the degree of grounds for revocation

C) Determination as to the Defendant’s assertion that the collection of each of the financial transaction information constitutes a violation of Articles 81-9 and 81-7(1) of the Framework Act on National Taxes, since it arbitrarily expanded the scope of tax investigation.

As seen earlier, the Defendant’s request for each of the financial transaction information does not constitute a tax investigation under tax law. Therefore, this part of the Plaintiff’s assertion is without merit without any further review.

Even if the Defendant’s argument that the collection of financial transaction information exceeds the minimum scope necessary for the purpose of use as stipulated in the proviso of Article 4(1) of the Act on Real Name Financial Transactions, the Defendant appears to have been provided with the details of the Plaintiff’s financial transaction in order to verify whether the instant real estate constitutes a house, and the Plaintiff continued to reside in the instant real estate. In order to verify the authenticity of such assertion, it seems necessary to investigate the details of the financial transaction for several years related to the disbursement of key money, public charges, etc., so the Defendant’s financial transaction information requested by the Defendant does not seem to exceed the necessary scope.

D) Determination as to the assertion that the tax investigation period was illegally extended

The proviso of Article 81-8(1) of the Framework Act on National Taxes provides for the grounds for extension of the period of tax investigation, and subparagraph 2 of Article 81-8 provides for "in the event that an investigation by a trader, a transaction partner, or a local financial transaction verification is required," and subparagraph 5 of Article 81-8 of the Framework Act on National Taxes provides that "in the event that

On the other hand, the fact that the defendant conducted a tax investigation with a suspicion of capital gains tax evasion against the plaintiff, and the fact that the defendant extended the tax investigation period on the grounds that it is necessary to conduct on-site financial transactions due to the expiration of the tax investigation period. In full view of the overall purport of the arguments as seen earlier, the reasons as mentioned in subparagraph 2 can be acknowledged at the time of extension of the tax investigation period, as well as the reasons as mentioned in subparagraph 5 can be acknowledged, and it is difficult to view that there is such a defect as

Therefore, the plaintiff's assertion on this part is without merit.

2) Whether the imposition of an unfair under-reported additional tax is illegal

Where Article 47-3(2) of the Framework Act on National Taxes conceals all or part of a fact that serves as the basis for calculating the national tax base or the amount of tax in cases of underreporting a tax return due to an unlawful act, imposition and collection of tax are impossible or considerably difficult. Therefore, imposing penalty tax much higher than that of general underreporting that is not caused by an unlawful act in order to induce a taxpayer to faithfully report the tax base. Therefore, in order to constitute “in cases of underreporting a tax return due to an unlawful act” under Article 47-3(2)1 of the Framework Act on National Taxes, there should be awareness that it is difficult to discover the taxation requirements for the national tax or underreporting a tax base by such such an active act as forging a false fact, and that it would result in the reduction of national tax revenue by evading the national tax liability (see, e.g., Supreme Court Decisions 2013Du12362, Nov. 28, 2013; 2014Du16168, Nov. 16, 2015).

In light of the following circumstances, i.e., the Plaintiff directly leased the instant real estate as the owner of the instant real estate, i.e., the Plaintiff did not reside in the instant real estate after leasing the entire real estate in 2004, and even though the lessee knew of the fact that the entire real estate was not used as a house, the Plaintiff reported the transfer income tax to a house with a substantial tax reduction effect, which was a disguised premise that only the first floor of the instant real estate used as a house was larger than the other area used as a house by leasing the real estate. ② The Plaintiff prepared a lease agreement on the instant real estate, and ii) prepared the lease agreement on the instant real estate, i.e., the Plaintiff failed to make a move-in report on the actual place of residence even if he did not reside in the instant real estate since 2004, and ii) made a false assertion that the Plaintiff and his family have been continuously residing in the instant real estate, i.e., the Plaintiff could be deemed to have been aware that there was a false tax evasion requirement due to the Plaintiff’s’s tax evasion.

Therefore, the part of the disposition of this case concerning an unfair underreporting penalty cannot be deemed unlawful, and the plaintiff's assertion on this part is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.