Seoul Administrative Court 2012Gudan30625 ( October 05, 2014)

Examination-transfer-2012-0132, 0133 ( February 21, 2012),

The fact that the amount under a sales contract which is deemed to have been created is the transfer value.

Since the authenticity of a sales contract is recognized, it is reasonable to deem that the sales price of real estate is one billion won.

Article 96 of the Income Tax Act [Transfer Value]

2014Nu3480 Revocation of disposition of revocation of imposition of tax

1.0A2. United StatesB

Head of △ District Office

Seoul Administrative Court Decision 2012Gudan30625 decided March 5, 2014

May 19, 2015

June 2, 2015

1. All appeals filed by the plaintiffs are dismissed.

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

1. Purport of claim

A. Plaintiff 0A

With respect to the imposition of OOO(including additional tax) of the capital gains tax for 2006 on April 24, 2012 by the Defendant against Plaintiff 0A on April 24, 2012, the judgment revoking it in the first place and confirming that it is null and void.

B. Plaintiff UB

The defendant's decision that the disposition of imposition of OOO(including additional tax) of capital gains tax in 2006 against the plaintiff UB on April 25, 2012 is revoked.

2. Purport of appeal

A. Plaintiff 0A

(1) Of the judgment of the court of first instance, the part of the judgment against the Plaintiff 0A that confirms that the following invalidation is revoked, and the Defendant confirmed that the imposition of the capital gains tax imposed on the Plaintiff 0A on April 24, 2012 by the Defendant is null and void.

B. Plaintiff UB

The judgment of the court of first instance that the part against the plaintiff UB loss falling under the following shall be revoked, and that the defendant's disposition of imposition of the capital gains tax for 2006 against the plaintiff UB on April 25, 2012 shall be revoked.

1. Details of the disposition;

A. On October 20, 2005, the Plaintiffs, who are married couple, acquired 1/2 shares of each of the 1/2 shares of OO-1 forest 51-1 forest 15,868 square meters and 51-2 forest 23,144 square meters of each of the O-2 forest 51-2 forest 23,144 square meters, hereinafter “the instant real estate”). On November 9, 2006, each of them transferred (hereinafter “the instant transfer”) and reported the transfer income tax on the premise that the transfer value is an OOO.

B. On April 24, 2012, the Defendant issued a correction and notification on April 24, 2012 on the premise that the actual transfer value of the instant real estate is an OOOO(OOOOwon + OOOOwon for the reported and late-paid tax - OOOOOwon for the reported and late-paid tax amount - 10 won or less (hereinafter “instant first disposition”), and on April 25, 2012, the Defendant issued a correction and notification on April 25, 201 that the Plaintiff UB increased the transfer income tax amount of OOO(the determined tax amount + the reported and late-paid tax amount + the reported and late-paid tax amount + the reported and late-paid tax amount, and the amount less than 10 won) (hereinafter “instant disposition”) to the Plaintiff UB.S. (hereinafter “instant disposition”).

C. On July 3, 2012, and July 2, 2012, Plaintiff 0B filed each request for review with respect to each of the instant dispositions, but the Commissioner of the National Tax Service rendered a decision to dismiss each of the instant dispositions on September 21, 2012.

D. On July 16, 2013, when the first instance court was in progress, the Defendant revoked ex officio the portion of penalty tax among each of the dispositions in the instant case, and again made a decision to impose penalty tax on the Plaintiffs (hereinafter “additional tax imposition disposition”).

[Ground of recognition] A without dispute, Gap 3, 4, 8-1 through 8-4, 11, Eul 1-1 through 2-2, 9 through 12, 18-1 through 19-2, the purport of the entire pleadings

2. The plaintiffs' assertion

Since each of the dispositions of this case is unlawful for the following reasons, Plaintiff 0A seeks confirmation of invalidity of the principal part of the Disposition No. 1 of this case, and Plaintiff 2 sought revocation of the principal part of the Disposition No. 2 of this case.

〇 이 사건 부동산의 실지양도가액은 매매계약서(갑 제1호증)상 매매대금인 OOOO원(원고들 합계)이므로, 양도가액이 OOOO원(원고들 합계)임을 전제로 한 이 사건 각 처분은 잘못된 실지양도가액을 기초로 한 하자가 있다.

〇 피고는 이 사건 각 처분에 앞서 원고들에게 과세예고통지를 하지 아니하였으므로, 이 사건 각 처분에 절차상 하자가 있다.

3. Determination as to the legitimacy of a principal tax imposition portion among each disposition of this case

A. Whether there was an error in calculating the actual transfer value of the real estate of this case

1) Issues of the instant case

In relation to the transfer of this case, there exist a sales contract (No. 1; hereinafter referred to as "the sales contract"), the sales price of which is entered as an OOO won, and the sales contract (the evidence No. 2, hereinafter referred to as "the above contract") stating the sales price as an OOO won. The disposition of this case was made on the premise that the sales price specified in the high-priced contract is regarded as the real transfer price, and the plaintiffs claim that the high-priced contract is forged by KimCC or KimD, the purchaser of the real estate, and only the low-price contract is the real sales contract related to the transfer of this case. Accordingly, the issue of this case is whether the high-priced contract is duly formed and it can be proven that the real transfer price can be recognized. Accordingly, first of all, after examining the authenticity of the evidence No. 2 (the above contract), the remaining evidence should be integrated to determine the real transfer price.

2) Whether the authenticity of Gap evidence No. 2 is recognized

A) As to the Plaintiff 0A

(1) Presumption of the authenticity of Gap evidence No. 2

The Plaintiff 0A recognized the portion of the stamp image of the Plaintiff 2 (the third date for pleading of the first instance trial), and with respect to the Plaintiff 0A, the authenticity of the above stamp image is presumed to have been established, and furthermore, the authenticity of the Plaintiff 2 is presumed to have been established.

(2) Determination on the Plaintiff’s assertion

(A) On the third date for pleading of the first instance trial, Plaintiff 00, the first instance court asserted that: (a) only responded to the question of the presiding judge that “whether the portion of the Plaintiff 0A’s seal in the Plaintiff 1’s name is identical to that of the Plaintiff 1’s seal in the Plaintiff 2’s name,” and that it does not make a statement to the effect that the identity of the seal is recognized.

Therefore, in principle, the principle of pleading is applied to public health and administrative litigation, and the rules of law concerning confession under Article 261 of the Civil Procedure Act shall be applied pursuant to Article 8(2) of the Administrative Litigation Act (see, e.g., Supreme Court Decision 91Nu1329, Aug. 14, 1992). When the contents of pleading are entered in the protocol, it shall have strong probative value as to the fact that the contents are true, barring any other special circumstances (see, e.g., Supreme Court Decision 2001Da6367, Apr. 13, 2001). The third statement of the first instance court in the statement in the statement in the statement in the statement in the statement in the statement in the statement in the statement in the statement in the statement in the statement in the statement in the statement in the statement in the statement in the statement in the statement in the court of first instance, it is apparent that the plaintiffs' signature is not written by the principal, and there is no evidence to deem that the above entries were erroneous.

(B) Furthermore, Plaintiff 0A also filed an application for appraisal in order to prove that the part of the Plaintiff 0A’s seal affixed to the low-price contract and high-priced contract is not identical to that of the Plaintiff 0A’s seal affixed to the contract. This seems to be an assertion to the effect that Plaintiff 2 withdraws the previous confession recognizing the identity of the seal attached to the evidence

Therefore, a confession is allowed only when the confession is proved by evidence that the confession is not in conformity with the truth and the confession is deemed to have been caused by mistake based on the purport of the entire pleadings (see, e.g., Supreme Court Decision 2001Da6367, Apr. 13, 2001). However, according to the result of appraisal entrustment with the appraiser E in the trial, the name of 01Da6367, Apr. 13, 2001 and the name of 0AA’s seal affixed on the evidence No. 1 and the seal No. 2 of the evidence No. 2 of the appraisal entrustment with the appraiser E in the trial, it is presumed as a result of the reduction of the size of each real estate sales contract form. However, even if the size of each real estate sales contract form is considerably different, it is presumed that it is impossible to discuss whether the above confession No. 2 of the Plaintiff’s stamp image affixed on the evidence No. 2 of the appraisal entrustment is not consistent with the reasoning for the withdrawal of the confession.

(C) Plaintiff 0A asserts to the effect that the above seal imprint was affixed by the buyer KimD or KimF, not by the Plaintiff.

(4) According to the appraisal result of the appraiser Gap's appraisal commission at the trial, it is recognized that the signature of the plaintiff 0A is likely to be inconsistent with the plaintiff 1's ordinary penology. However, Article 358 of the Civil Procedure Act, which is applicable mutatis mutandis under the Administrative Litigation Act, provides that "when the plaintiff or his agent bears his signature or seal, the authenticity of the private document is presumed to be genuine." Thus, even if the identity of the signature is not recognized, it cannot be said that the authenticity of the plaintiff 2's signature is reversed merely because the plaintiff 1, 2, 3, and 8's signature is not stated in the above presumption of sale and purchase agreement, and it is difficult to conclude that the plaintiff 2's signature or seal was not identical to that of the plaintiff 2's original contract document's receipt of contract amount and intermediate payment without considering the following circumstances, i.e., the plaintiff 2's signature or seal affixed to the plaintiff 1's signature or seal affixed to the plaintiff 20's original document.

B) As to Plaintiff UB

In the evidence No. 2, the Plaintiff UB’s seal was not affixed to the Plaintiff UB, and according to the result of the appraisal commission for the appraiser EB in the trial, it is recognized that the Plaintiff UB’s signature listed in the seller column of the evidence No. 2 does not coincide with the Plaintiff UB’s ordinary penology. Therefore, it is reasonable to deem that the evidence No. 2 did not have been established in relation to the Plaintiff UB as to the relationship with the Plaintiff UB, and therefore, the real transfer value should be acknowledged by other evidence.

3) Whether the purchase price stated in the evidence No. 2 No. 2 can be recognized as the actual transaction price

In light of the overall purport of the evidence duly admitted as a whole, the following circumstances, i.e., (i) as seen in the above Section 2, insofar as the authenticity of a high-priced contract (Evidence No. 2) which is a disposal document, as seen in the above Section 2, is acknowledged as having been established, two genuine sales contracts with each other are deemed to exist in relation to the instant sales contract. While the plaintiffs and KimD, etc. are difficult to find reasons to enter the sales price higher than the actual ones, the so-called "multi-type contract stating the sales price lower than the actual ones," the plaintiffs can reduce the transfer income tax as they can reduce the sales price for other land buyers, and KimD can easily find the preparation motive as they could reduce the sales price for the other land buyers. (ii) In relation to the Plaintiff UDB, the authenticity No. 2 cannot be used as evidence for the Plaintiff UB, but the Plaintiffs were jointly transferred the instant real estate at a high-priced price of 100,000 won, and thus, the Plaintiffs received the instant real estate price No. 206 billion.

(iv)Indivates

Therefore, the actual transaction price of the real estate of this case is KRW 1 billion, and thus, this part of the plaintiffs' assertion is without merit on the premise different from this point.

B. Whether there is procedural error without receiving the notice of taxation notice

1) Requirements for recognizing a tax disposition as illegal due to procedural defect

In order for a taxation to be recognized as illegal due to a defect in the procedure for taxation, the procedure required to pass through under the law has been omitted or insufficient, and the procedure must be essential for the accurate calculation of the tax amount or for the remedy of the taxpayer's rights. The taxation disposition cannot be deemed unlawful due to a defect in the procedure merely because there is no legal basis or voluntary procedure that does not affect the calculation of the tax amount or the remedy of the taxpayer's rights is omitted or insufficient. Whether the procedure falls under the procedure necessary for the remedy of the taxpayer's rights should be determined by comprehensively considering the basis of the relevant procedure, the legislative intent, and impact on the taxpayer.

In this case, the defendant asserts that the period of imposition of capital gains tax on the transfer of real estate of this case constitutes a case of underreporting by unlawful act and that the period of imposition of capital gains tax should be terminated on May 31, 2017. Thus, the defendant's argument that the disposition of this case of this case does not require prior notice of taxation due to the remaining circumstances of not more than three months from the expiration date of the exclusion period of imposition, is without merit, but it is at issue as to whether the disposition of this case is unlawful due to procedural defects that did not give prior notice of taxation.

(ii) the purpose and contents of the advance notice of taxation;

In accordance with the amendment of the Framework Act on National Taxes by Act No. 5993 on August 31, 199, the provisions on pre-assessment review were newly established (Article 81-10), and the provisions on pre-assessment notice at this time were also newly established. The pre-assessment review system is a procedure for notifying taxpayers of the details to be taxed prior to the issuance of a taxation and allowing them to file a claim for the lawful review of taxation. The pre-assessment review system was processed to enhance the effectiveness of taxpayers' rights protection at the pre-assessment stage. In the case of national taxes, the pre-assessment review system was already implemented on the basis of the National Tax Service Directive (No. 1237) on April 30, 199, and was stipulated in the Framework Act on National Taxes on August 31, 199.

Meanwhile, Article 81-15(1) of the Framework Act on National Taxes (amended by Act No. 10580, Apr. 12, 2011; hereinafter referred to as "Framework Act on National Taxes") that applies to each of the dispositions of this case has the result of a tax investigation.

Article 63-14(1) of the Enforcement Decree of the Framework Act on National Taxes (amended by Presidential Decree No. 22038, Feb. 18, 2010; hereinafter referred to as the "Enforcement Decree of the Framework Act on National Taxes") provides that "Any taxpayer may file a request for an examination of legality of the notification with the head of a tax office or the director of a regional tax office who has given such notification within 30 days from the date of receipt of such notification: Provided, That the head of a regional tax office may request the Commissioner of the National Tax Service for the matters prescribed by Presidential Decree concerning statutes, such as where the authoritative interpretation of the Commissioner of the National Tax Service is modified or a new interpretation is necessary with respect to statutes," provides for the requirements for pre-announcement of taxation which is subject to review before taxation, and accordingly, such notification is difficult to be recognized by the head of a regional tax office or the head of a regional tax office under Article 63-14(3) other than pre-announcement of taxation (including cases where corrective measures are taken on the spot).

A) Although a notice of pre-assessment is mentioned in the Framework Act on National Taxes and the Enforcement Decree of the same Act, it is merely mentioned in the provision on pre-assessment review in the provisions on pre-assessment review, in order to stipulate the subject matter of pre-assessment review, the procedure constituting the premise, and the starting point of the period for the application of the pre-assessment review, and there is no specific provision on the specific requirements and the procedure for the pre-assessment notice, and it is only stipulated in the regulations on pre-assessment review, which is the instructions

However, the pre-assessment review regulation is an administrative rule issued by a superior administrative agency to a subordinate administrative agency as a direction by the National Tax Service, which provides for the guidelines for the performance of duties or the standards for the interpretation and application of statutes. Since such regulations are prescribed without being delegated by statutes, it cannot be deemed that they have an external binding legal order, and it is reasonable to deem that they have an effect only within the executive organization (see, e.g., Supreme Court Decision 2006Du3742, 3759, Mar. 27, 2008). Therefore, it is difficult to view that the pre-announcement notice of taxation is a procedure that guarantees taxpayers specifically and specifically.

B) Even in accordance with the pre-assessment review regulation, all taxation dispositions are not required to be notified, and the pre-assessment review notice is not an essential premise for taxation dispositions, such as tax exemption, if the exclusion period for taxation imposition is imminent (see Supreme Court Decision 2010Du19713, Oct. 11, 2012). In addition, even if a taxpayer was unable to obtain the opportunity to request pre-assessment review because it did not receive the pre-assessment notice, a taxpayer cannot be deemed as a procedure that can object to the legality of taxation through the procedures such as filing an objection, request for examination, request for adjudgment, and administrative litigation as prescribed by the law as the subsequent remedy procedure. In light of the fact that the pre-assessment notice remains, it is difficult to deem that the pre-assessment notice and the pre-assessment notice should be necessarily required in terms of guaranteeing the substantial security of the pre-assessment review.

4) Sub-committee

Therefore, even if the notice of taxation was not given to the plaintiffs, it cannot be said that there was a procedural error in each of the dispositions of this case. Therefore, this part of the plaintiffs' assertion is without merit on different premise.

C. Sub-decision

Therefore, since the main imposition portion of each of the dispositions in this case is legitimate, among the dispositions in this case, Plaintiff 0A’s claim seeking confirmation of invalidity of the main imposition portion among the dispositions in this case’s No. 1 and Plaintiff 2’s claim seeking revocation of the main imposition portion among the dispositions in this case’s No.

4. Conclusion

Therefore, the judgment of the court of first instance is just in conclusion, and it is so decided as per Disposition by the dismissal of the plaintiffs' appeal.