early 2010 Mine2926 ( December 29, 2010)

Fraud or other unlawful act of falsely reporting the standard market price after short-term transfer and attaching double contract;

The exclusion period for capital gains tax is 10 years, since the transfer income tax is calculated as the standard market price and the transfer income tax is falsely underreported as if there was no transfer margin, and the attachment of a false double contract constitutes a deceptive scheme or other active act that significantly makes it difficult to impose and collect taxes, and thus the exclusion period for capital gains tax is 10 years.

2011Guhap898 Revocation of Disposition of Imposing capital gains tax

p. Mex

O Head of tax office

August 9, 2011

August 30, 2011

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposing KRW 45,980,460 on the Plaintiff on July 8, 201 shall be revoked.

1. Details of the disposition;

A. On May 22, 2001, the Plaintiff jointly with JA and the headB in the auction procedure of real estate rent in the Jeonju District Court 99ta, 13568, the Jeonju District Court rendered a decision to permit the sale of the 1,379,000,000 square meters and the 1,379,000,000 square meters and the 1/379,000 square meters and the 1/379,000 square meters and the 1/3 equity shares were transferred to the Non-Party CC on December 1, 2001.

B. On December 1, 2001, Nonparty 2, an employee of KimD, reported the transfer of each of the instant real estate 1/3 shares to the director of the XX tax office on delegation by the Plaintiff, and subsequently, Nonparty 2, who is an employee of Kim DD, reported the transfer value of each of the instant real estate 610,987,664 won (base market price), and the acquisition value of which is 626,884,664 won (base market price) and calculated transfer gains as -34,703,540 won and did not have any transfer income tax to be paid.

C. After October 6, 2009, the Director of the Gwangju Regional Tax Office conducted a field investigation of capital gains tax on the above leCC from October 6, 2009 to June 26, 2009, confirmed that the Plaintiff and the headB acquired the instant real estate in KRW 1,600,000,000, and prepared a false double contract with the purchase price of KRW 1,400,000 at the time, and notified the Defendant of the taxation data on November 20, 2009.

D. Accordingly, the Defendant calculated gains from transfer based on the actual transaction price and reported capital gains for less than one year after the Plaintiff’s acquisition (see Article 96(1)4 of the former Income Tax Act (amended by Act No. 6429, Mar. 28, 2001; hereinafter “the former Income Tax Act”)) and made and submitted a false double contract, thereby making a under-reported capital gains under-reported by calculating capital gains from transfer according to the standard market price. The Defendant made a disposition of the instant case (hereinafter “instant disposition”) on July 8, 2010 by applying the exclusion period of 10 years to the Plaintiff by taking account of fraud or other unlawful act under Article 26-2(1)1 of the former Framework Act on National Taxes (amended by Act No. 10405, Dec. 27, 2010.

E. The Plaintiff dissatisfied with the instant disposition and filed an appeal with the National Tax Tribunal on September 6, 2010, but the appeal was dismissed on December 29, 2010.

[Ground of recognition] Facts without dispute, Gap evidence 2-1, 2, Gap evidence 3 through 9, 12, 13, Eul evidence 5 and 8, the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The Defendant issued the instant disposition on the premise that the Plaintiff’s filing of the tax base of capital gains by calculating capital gains tax based on the standard market price, not actual transaction price, constitutes “Fraud or other unlawful acts” as stipulated in Article 26-2(1)1 of the Framework Act on National Taxes. However, in order to constitute “Fraud or other unlawful acts”, it shall carry the intent of tax evasion and thereby make it impossible or considerably difficult to impose and collect taxes as the means to do so, and thereby, the causal relation should be recognized that the imposition and collection of taxes is impossible or considerably difficult. Thus, in the event of a short-term transfer within one year after its acquisition, the Plaintiff merely made a simple under-reported return based on the standard market price for the capital gains of this case by calculating capital gains tax based on the actual transaction price and filing a report on capital gains tax base based on the actual transaction price, and there was no fraudulent or other unlawful act that makes it impossible to impose and collect taxes or make it difficult for the Plaintiff to do so after the expiration of the period of exclusion period of capital gains tax from the date of filing the instant transfer income tax return.

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

1) Article 26-2(1)1 of the Framework Act on National Taxes provides that the limitation period for the right to impose national taxes shall be ten years from the date on which national taxes can be imposed if a taxpayer evades a tax as a "Fraud, or other unlawful act". "Fraud, other unlawful act" in this context refers to a deceptive scheme or other active act which makes it impossible or considerably difficult to impose and collect taxes by social norms and which does not constitute a mere failure to file a tax return under the tax law or making a false tax return without accompanying any other act (see, e.g., Supreme Court Decisions 97Do2429, May 8, 1998; 98Do667, Apr. 9, 199). It is difficult for a taxpayer to file a tax return with the tax base to grant credibility by underreporting the reported amount of national taxes and to produce a false sales price under the tax law by preparing and submitting a false sales price under the tax law as 201Do140, Feb. 24, 199.

2) Comprehensively taking account of the purport of the Plaintiff’s respective entries and arguments as to this case’s health, Gap’s evidence Nos. 3 through 9, Eul’s 1, 2, and 3 as to transfer margin, the Plaintiff owned 1,379,00,00 each of 1/3 shares on May 22, 200 and transferred 1,60,000 won to CC on December 1, 2001 without one year thereafter. ② The Plaintiff, JA, 200, and 4B did not prepare a false statement of transfer margin as to transfer margin as to transfer margin of this case’s 1,60,00 won and 60,000 won and less than 60,000 won and less than 1,60,000 won and less than 60,000 won and less than 1,60,000,000 won and more than 1,60,000 won and more than 66,01,01.

3) Therefore, since the Plaintiff’s act constitutes a case where he evades national taxes by “Fraud, or other unlawful act,” the exclusion period of the right to impose capital gains tax from the transfer of the instant real estate is applied for 10 years pursuant to Article 26-2(1)1 of the Framework Act on National Taxes, and the instant disposition taken under such premise is deemed lawful.

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.