Supreme Court-2014-Du-4434 ( October 20, 2015)

Chon court 2012 Mine3870 ( November 13, 2012)

The payment notice of the additional tax on negligent tax returns and the additional tax on negligent tax payment are defective in omitting the matters required by the relevant statutes.

The tax payment notice of this case contains only KRW 73,790,939, the aggregate amount of which is 73,790,939, without distinguishing each of the above additional taxes by type, and thus, the tax payment notice of this case and additional tax for arrears are defective in omitting the matters required by the relevant

Articles 94 (Scope of Transfer Income), 96 (Transfer Price), and 115 (Additional Tax on Transfer Income Tax) of the former Income Tax Act (amended by Act No. 6781 of December 18, 2002)

2015Nu313. Revocation of disposition of imposing capital gains tax and additional tax

AA

00. Head of tax office

Jeonju District Court Decision 2013Guhap200058 Decided May 14, 2014

May 18, 2015

June 22, 2015

1. The part of the judgment of the court of first instance against the Plaintiff, which orders the revocation below, shall be revoked. On June 8, 2012, the imposition of capital gains tax by the Defendant against the Plaintiff shall be revoked.

2. Of the total litigation costs, 40% is borne by the Plaintiff, and the remainder 60% is borne by the Defendant, respectively.

The same shall apply to the order.

1. Objects to be tried on the political party after remand;

On June 8, 2012, the Plaintiff initially filed a request for revocation of imposition of principal income tax and additional tax, and the first instance court dismissed all of the Plaintiff’s claims. The Plaintiff appealed to the first instance court judgment, and the first instance court rejected the Plaintiff’s appeal. The Plaintiff appealed. The Plaintiff’s appeal was partially accepted by the Plaintiff, and the Supreme Court reversed only the part pertaining to imposition of additional tax of capital gains tax in the judgment prior to remand, and remanded the said part to the relevant party, and dismissed the Plaintiff’s remaining appeal. As such, the judgment of the first instance court prior to the remand of the Plaintiff’s request for revocation of imposition of principal tax of capital gains tax was separately finalized.

Therefore, the subject of the judgment after remand is limited to the part that was reversed and remanded as above, i.e., the revocation of the disposition imposing capital gains tax.

2. Details of the disposition;

A. On December 31, 2001, the Plaintiff purchased and owned the Government-dong ******-*-**-**-*-*-* the underground floor and the 5th floor above the ground (hereinafter referred to as the "real estate in this case") from the Government-si ***--*, the first floor above the ground, and the fifth floor above the ground, and transferred it to *** on November 22, 2002.

B. On January 30, 2003, the Plaintiff filed a preliminary return on the tax base of capital gains tax on the instant real estate, calculated the transfer value of KRW 737,00,000, and the acquisition value of KRW 710,000,00, and reported and paid capital gains tax of KRW 757,156.

C. On April 17, 2012, the Defendant issued a prior notice of taxation to the Plaintiff on the ground that the transfer value of the instant real estate was KRW 850,00,000,000, the final tax base of KRW 120,173,80, calculated tax amount of KRW 43,262,568, and the estimated tax amount of KRW 116,212,223.

D. On May 16, 2012, the Plaintiff filed a request against the Defendant to review the legality of the taxation prior to taxation. However, on June 5, 2012, the Defendant: (a) confirmed that the actual transaction price at the time of the transfer of the instant real estate was false; (b) denied the details of the report on June 8, 2012; and (c) deducted the calculated tax amount of KRW 120,173,80 from the actual transaction price at the time of the transfer of the instant real estate to the Plaintiff; (d) KRW 36% from the calculated tax amount of KRW 43,262,568; (b) additional tax of KRW 73,790,939; and (c) KRW 841,284 from the calculated tax amount of KRW 116,212,220 from the capital gains tax; and (d) corrected the amount of KRW 256,3756,156.65

E. The Plaintiff filed an appeal with the Tax Tribunal on August 31, 2012, but the Tax Tribunal dismissed the Plaintiff’s appeal on November 13, 2012.

Facts without dispute over the basis of recognition, Gap 1 through 7 (including branch numbers for those with additional numbers; hereinafter the same shall apply), Eul 1, 2 and 5, and the purport of the whole pleadings.

3. Whether the instant disposition is lawful

A. Summary of the plaintiff's assertion

Where both principal and additional taxes are imposed based on a single tax payment notice, the Plaintiff, who is a taxpayer, should be informed of the details of each taxation by classifying the amount of principal and additional taxes, and the basis for calculation thereof. Since the Defendant did not entirely state the basis for calculation, etc. of the amount of tax while making the instant tax payment notice, the instant disposition is unlawful.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) When both a principal tax and a penalty tax are to be imposed upon a single tax payment notice, the relevant tax amount and the basis for calculation of the penalty tax should be stated in the tax payment notice separately. In a case where multiple types of penalty tax are to be imposed, the person liable for duty payment should be able to inform the details of each tax disposition by distinguishing the amount and the basis for calculation of the penalty tax from each other. Therefore, if the penalty tax is imposed without entirely disclosing the type and the basis for calculation of the penalty tax on the ground that the imposition of penalty tax is imposed, such disposition is unlawful (see, e.g., Supreme Court en banc Decision 2010Du12347, Oct.

Meanwhile, if it is evident that a taxpayer was not affected by the determination of whether he/she is dissatisfied with the disposition or by the notice of tax notice sent by the tax authority prior to the taxation disposition, it can be deemed that the defect of the tax notice is cured. However, the document that can supplement the defect of the tax notice is required to be delivered to the taxpayer prior to the delivery of the tax notice pursuant to the statutes, etc., and thus, it is limited to the whole tax payment notice. In addition, the necessary matters to be stated in the tax notice should be properly (see, e.g., Supreme Court Decision 2005Du5505, Oct. 13, 2005).

2) According to the above evidence, the tax notice of this case contains only 73,790,939 won in the additional tax item, including the classification of the additional tax amount and the additional tax amount by additional tax, and without the entry of the basis of calculation, etc., for each additional tax. The notice of taxation of this case (Evidence A4) contains the tax base, calculated tax amount, and estimated notified tax amount. The expected notified tax item contains only 116,212,23 won without the classification of the principal tax and the additional tax. The "the procedure for remedy for infringement of rights and the income amount, tax base, and calculation statement of the amount of tax" as the document attached to the above notice. However, according to the request for review of legality (Evidence B5) submitted by the plaintiff, the plaintiff did not have any evidence to verify the specific contents of the attached document, and the plaintiff did not have any other evidence to prove that the plaintiff did not have any intention to sell the real estate as a result of the conclusion of the transfer income tax contract or the additional tax, but did not have any other evidence to prove that it was made in the sale of this case.

Therefore, the instant disposition is unlawful.

4. Conclusion

Therefore, the plaintiff's claim for cancellation of the disposition imposing the transfer income tax is reasonable and acceptable. This part of the judgment of the court of first instance, which is different from this conclusion, is unfair, and it is so decided as per Disposition.