If a penalty tax is imposed on the unpaid global income tax based on a preliminary return

Even in cases of non-payment based on a preliminary return and preliminary return, an additional tax is imposed; and an additional tax is an administrative sanction imposed, as prescribed by the Act, in cases where a taxpayer violates various duties, such as a return and tax payment, as prescribed by the Act, in order to facilitate the exercise of the right to impose taxes and the realization of a tax claim, and if

Article 47-4 of the Framework Act on National Taxes for Additional Taxes for Indecent and Refundful Payment

2018Guhap51911 Revocation of Disposition of Imposing Additional Tax

Plaintiff, Appellants

AA

a) the Director of the Tax Office

July 20, 2018

August 31, 2018

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

In June 9, 2017, the Defendant revoked the disposition of imposition of x members and x members for additional tax due to the failure to report to the Plaintiff in 2014.

1. Details of the disposition;

A. On February 1, 2013, the Plaintiff registered as a real estate sales businessman. The Plaintiff newly built a commercial building on the land of 00 to 11, Kimpo-si, Kimpo-si, and sold 54 stores from February 2014 to November 2014.

B. A real estate sales businessman shall file a preliminary return with the head of the competent tax office by the date two months elapse from the end of the month in which the sales date belongs and pay the tax amount [Article 69(1), (3), and (4) of the former Income Tax Act (amended by Act No. 15225, Dec. 19, 2017)]; the Plaintiff did not pay the preliminary return and its subsequent return by the date two months elapse from the end of the month in which the sales date of the store belongs.

C. The Plaintiff filed a final return on the tax base of global income for 2014, including income from the sales of stores, within the final return period of global income tax base. The Plaintiff paid the global income tax on June 30 and August 24, 2015.

D. On June 9, 2017, the Defendant: (a) filed a final return of global income tax base including the income from the sale of a store and paid the tax; (b) on the grounds that the Plaintiff did not pay the tax accordingly as the said preliminary return and the said preliminary return, the Defendant imposed the Plaintiff KRW x members of the additional tax without filing a return and the additional tax for unfaithful payment (hereinafter “instant disposition”).

[Reasons for Recognition] Facts without dispute, Gap 1, 3 evidence, Eul 1 evidence, the purport of the whole pleadings

2. Relevant statutes;

It is as shown in the attached Form.

3. Whether the instant disposition is lawful

A. Summary of the plaintiff's assertion

1) Article 129(3) of the Enforcement Decree of the Income Tax Act provides, “The head of the competent tax office shall determine and notify the profit margin and the amount of tax to a person who has filed a provisional return resulting from the provisional return, within one month from the date of filing the return and payment.” This provision is a mandatory provision, and the meaning of “Immediate” portion ought to be construed as “within one month from the date of filing the legal preliminary return, as the person who has filed the return on the former part,” and the meaning of “Immediate portion” ought to be construed as “within one month from the end of May, 2014 to the end of February 2015.” The instant disposition was illegal disposition in violation of the procedures for the tax payment notice.

2) Since the Defendant did not immediately issue a tax notice to the Plaintiff as above, the Plaintiff was unable to file a preliminary return during the period from March 2014 to November 2014, and thus, there exists “justifiable cause” for which the Plaintiff failed to file a preliminary return during that period.

3) The Defendant disposed of the instant disposition on the premise that the tax liability based on the preliminary return was determined on the date of statutory preliminary return (the date two months from the last day of the month to which the date of sale belongs), but the tax liability based on the preliminary return is finalized at the time of filing the final return. Therefore, the instant disposition

B. Determination

For the following reasons, the instant disposition issued by the Defendant to the Plaintiff on the grounds that the Defendant did not pay the provisional return on gain accruing from the sale of land, etc. and the subsequent payment is justifiable. The Plaintiff’s assertion

1) The liability to pay the income tax that is scheduled for preliminary return is established on the last day of the month in which the amount forming the tax base occurs (Article 21(2)2 of the Framework Act on National Taxes), and even in the case of preliminary return, it is possible to impose and collect pursuant to the provisions of the Act. As such, it shall be determined by the taxpayer’s filing of the tax base and tax amount within 2 months from

2) Where a real estate sales businessman fails to make a preliminary return on profit margin on land or buildings and its tax amount, the tax authority shall determine such profit margin and tax amount and notify the real estate sales businessman thereof (see, e.g., Article 69 of the Income Tax Act and Article 129(3) of the Enforcement Decree of the Income Tax Act). The Plaintiff asserted as to Article 129(3) of the Enforcement Decree of the Income Tax Act (see, e.g., Article 129(3) of the Enforcement Decree of the Income Tax Act). However, since Article 129(3) of the Enforcement Decree of the Income Tax Act provides for a disposition imposing taxes on a taxpayer who has failed to make a preliminary return, the exclusion period is in accordance with the exclusion period prescribed in Article 26-2 of the Framework Act on National Taxes, such as other national taxes, and it is difficult to expect the tax authority to determine the tax base and tax amount as soon as possible.

3) Additional taxes are imposed even in the event of failure to pay taxes based on a preliminary return and a preliminary return (Articles 47-2(1) and 47-4(1) of the Framework Act on National Taxes). Additional taxes are administrative sanctions imposed, as prescribed by the Act, in cases where a taxpayer violates various obligations, such as a return and tax payment, in order to facilitate the exercise of the right to impose taxes and the realization of a tax claim, and are not imposed when justifiable grounds exist (Article 48(1) of the Framework Act on National Taxes). However, the circumstance that the Defendant did not issue a tax notice to the Plaintiff cannot be said to constitute justifiable grounds for not being attributable to the Plaintiff’s failure

4. Conclusion

The claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.