Early High Court Decision 2008 Jeon 2461 ( October 14, 2008)

In the case of global income tax by estimation method, whether the penalty tax for failure to make a tax return is illegal.

The tax base and tax amount of the global income tax shall be determined by the actual amount revealed by the method of tax investigation, etc. if any error is found in the details of the return, and it shall not be the exception that the final return on the global income

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

Article 70 (Final Return of Global Income Tax)

Article 80 (Determination and Correction of Income Tax Act)

1. All of the plaintiffs' claims are dismissed.

2. The costs of lawsuit are assessed against the plaintiffs.

피고가 2008. 6. 5. 원고 박☆군에게 한 2005년 귀속 종합소득세 부과처분 548,972,350 원 중 419,305,089원을 초과하는 부분을, 원고 김☆님에게 한 2005년 귀속 종합소득세 부과처분 301,736,170원(소장 청구취지란의 301,736,173원은 301.736.170원의 오기로 보인다) 중 230.780.323원을 초과하는 부분을 각 취 소한다.

1. Circumstances of the disposition;

가. 원고들은 공동으로 부동산업 ・ 부동산매매업을 하기로 공동사업계약을 체결하고 (원고 박☆군 : 64.5%, 원고 김☆님 : 35.5%) 2005. 7. 1.을 사업개시일로 하여 공동사업자등록을 마쳤다.

B. On August 30, 2005, the Plaintiffs sold 8,819,900,000 square meters of over-water and forests of 21-4 and 17,151 square meters of land in Do, ○○-si, ○○-si, Do, and Do, and sold 30,643 square meters of 45,00,000 square meters of 30,643 square meters of 15,00,000 square meters of 17,151 square meters of land to 8,819,90,000,000 won. On December 29, 2005, the Plaintiffs filed a final return on global income tax and tax amount for 2005, based on the income amount calculated by deducting the amount of 8,864,900,000,000 won of the income amount derived from the sale and purchase of each of the instant land from the sale of the instant land.

다. 피고는 원고들에 대하여 세무조사를 실시하여, 2007. 12. 17. 이 사건 각 토지의 양도가액에서 경비지출로 확인되는 이 사건 각 토지의 취득가액, 취득세, 등록세 납부 액 등을 필요경비로 공제하여 부동산매매업 소득금액을 원고 박☆군은 2,209,068,168 원, 원고 김☆님은 1,215,843,721원으로 하여 원고 박☆군의 2005년 귀속 종합소득세를 939,303,664원(신고불성실가산세와 납부불성실가산세 포함) 원고 김☆님의 2005년 귀속 종합소득세 총결정세액 500,862,330원(신고불성실가산세와 납부불성실가산세 포 함)으로 경정한 후, 원고 박☆군에게 확정신고 ・ 납부한 금액을 공제한 나머지 533,090,390원을, 원고 김☆님에게 확정신고 ・ 납부한 금액을 공제한 나머지 292,611,600원을 각 부과하였다.

라. 피고는 2008. 4. 3. 필요경비를 일부 추가 산입하여 원고 박☆군에 대하여 69,761,540원을, 원고 김☆님에 대하여 37,985,330원 감액경정하였다가, 2008. 6. 5. 손 익 귀속시기 오류분을 시정하여 원고 박☆군에 대하여 85,643,508원, 원고 김☆님에 대 하여 47,109,904원을 각 증액경정하여 최종적으로 원고 박☆군에게 기납부세액을 공제 한 나머지 548.972.350원(신고불성실가산세 40,984,234원, 납부불성실가산세 88,683,027원을 포함)을, 원고 김☆님에게 기납부세액을 공제한 나머지 301,736,170원 (신고불성실가산세 22,145,812원, 납부불성실가산세 48,810,038원을 포함)을 각 부과하 는 처분을 하였다(이하, '이 사건 각 처분'이라 한다)

[Grounds for Recognition] Unsatisfy, Evidence No. 1, Evidence No. 2-1, Evidence No. 2, Evidence No. 3-5, Evidence No. 6-1, 2, Evidence No. 11, 12, and 14, Evidence No. 2-1, 2, Evidence No. 5-1, 5-2, Evidence No. 6-1, 6-2, Evidence No. 7-1, 2-1, 7-2, the whole purport of the pleadings

2. Determination as to the defendant's defense prior to the merits

(a)the main safety defense of the defendant;

The plaintiffs' lawsuit on the increased portion on June 5, 2005 is unlawful as it was filed without going through a request for examination or adjudgment.

B. Determination

According to the evidence evidence Nos. 7 and 8, the plaintiffs appealed to the Tax Tribunal on June 30, 2008, including the increased and decreased portion on June 5, 2008, and filed an appeal with the Tax Tribunal on June 30, 2008, and the Tax Tribunal dismissed the above plaintiffs' appeal on October 14, 2008. Thus, the defendant's defense is without merit.

3. Whether each of the dispositions of this case is legitimate

(a)Recommendations of the plaintiffs;

The plaintiffs continuously and repeatedly purchased each of the instant lands for the purpose of temporary and non-redual investment, and they merely filed a global income tax return as business income because each of the instant lands falls under the land transaction permission area, and thus it cannot be filed before the land transaction permission. Accordingly, the plaintiffs did not keep the books required by a business operator, and there is no evidentiary document, such as the book keeping and bookkeeping book keeping and actually keeping and keeping the sales income of each of the instant lands, so they filed a final tax return on global income pursuant to Article 70 (1) 6(a) of the Income Tax Act. Thus, since the defendant made a final tax return on global income pursuant to Article 70 (1) 6(a) of the Income Tax Act because there is no evidentiary document, such as the book keeping and bookkeeping book keeping the sales income of each of the instant lands, it shall be deemed that there is a justifiable reason that the plaintiffs cannot be any fault of tax obligation for the plaintiffs, even if the plaintiffs are acknowledged

(b) relevant statutes;

Article 70 (Final Return of Global Income Tax)

Article 80 (Determination and Correction of Income Tax Act)

C. Determination

1) In cases where the amount of income is returned below the amount of income to be returned under Article 70 of the Income Tax Act (amended by Act No. 7837 of Dec. 31, 2005), if the additional tax is imposed and paid below the amount of income to be paid pursuant to Article 81(1)2(b) of the Income Tax Act, etc., the additional tax under tax law is imposed pursuant to Article 81(4) of the Income Tax Act. In order to facilitate the exercise of the right to impose taxes and the realization of tax claims, where the taxpayer violates the tax return and tax liability under the Act without justifiable grounds, it is unreasonable for the taxpayer to be aware of his/her duty without justifiable grounds, and it is unreasonable for the latter to expect the party to perform his/her duty, and thus, the additional tax under the tax law should be imposed on the non-performance of his/her duty under the tax law unless there are justifiable grounds not attributable to the failure of the duty to pay taxes (see, e.g., Supreme Court Decision 2005Du197984, Apr. 19, 197, 200098.

2) Under Article 70(4)6 of the Income Tax Act, in a case where the amount of business income is not calculated on the basis of the books and documentary evidence kept and kept pursuant to Articles 160 and 161 of the said Income Tax Act, a final return of comprehensive income tax base under the estimation method is recognized by prescribing it as estimated income statement prescribed by the Presidential Decree. However, if there are omissions or errors in the return of tax base pursuant to Article 80(2) of the said Income Tax Act, the tax base and tax amount of global income tax shall be determined on the basis of the actual amount revealed by the method of tax investigation, etc., and if there are omissions or errors in the return of tax base pursuant to Article 80(2) of the said Income Tax Act, it shall not be deemed that the final return of global income tax base was made by the method of tax investigation, etc., unless it is found that the return and payment was made on the basis of the estimation method, it shall be interpreted that there was a risk of imposing the additional return of tax return and the additional return of tax.

3) Even if there is no book-keeping or other documentary evidence in the case of real estate sales, the income amount is easily grasped through the purchase price and sale price of the real estate, the characteristics of the category of business are simple, simple and small compared with those of another category of business, and the business period is short if it is based on the previous documentary evidence, and it is recognized that there is no other business performance as well as the purchase and sale of the land twice.

4) In full view of the above circumstances, there is no evidence to recognize a salperma that it is difficult to see that there is a legitimate reason for underreporting and overpayment to the Plaintiff solely on the basis of the circumstances proposed by the Plaintiff.

3. Conclusion

If so, the plaintiff's claim for objection case is without merit, so it is decided the same as the order to dismiss it.