early 209 Heavy2825 ( December 17, 2009)

false calculation of processed assets and depreciation costs shall be made by fraud or other improper means.

The exclusion period of imposition shall apply 10 years because the act of falsely keeping the book as if the personal-owned assets are the assets of the corporation and including the depreciation costs of the processed assets as deductible expenses is calculated by fraudulent or other unlawful means.

1. The plaintiff's claim is dismissed.

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

The Defendant’s imposition of KRW 169,363,030 of corporate tax for the business year 2000 against the Plaintiff on March 15, 2009, the imposition of KRW 120,962,90 of corporate tax for the business year 2001, and KRW 40,861,440 of corporate tax for the business year 202 shall be revoked.

1. Details of the disposition;

A. On April 20, 1997, the Plaintiff started the business with the trade name of 66-21, Nam-gu, Incheon, Dong-dong BB, 66-21, and applied for the suspension of business from November 1, 2003 to April 30, 2004. Thereafter, the business was voluntarily closed on February 16, 2005 by the Defendant as of December 31, 2003. On November 30, 2006, the Plaintiff resumed the business again from 286-5, Nam-gu, Incheon, Dong-dong, Dong-dong, Incheon, to the reduction gas station from Do-dong, Seoul to Do-dong, 286-5, and on August 13, 2009, the Plaintiff changed its trade name to Do-dong, Do-dong, Do-dong, Seoul.

B. The Defendant reported and paid corporate tax by appropriating the amount of KRW 250 million in the year 200,000 as depreciation costs by appropriating the amount of KRW 600,000 in the book value as the assets of the Plaintiff’s business year 1999 as the assets of the Plaintiff’s business year, KRW 184,880,00 in the business year 2001, and KRW 87,255,00 in the business year 202 as deductible expenses under the Corporate Tax Act. Considering that the assets of this case were processed and appropriated as the assets of this case, which are not the assets of the Plaintiff’s business entity, but the assets of this case, and applying the exclusion period for imposition of 10 years, deeming that the depreciation and appropriation of the assets of this case constituted a case of evading national taxes through fraud or other unlawful acts, the amount of depreciation of the assets of this case to the Plaintiff for the business year 200, 360,300, 209, 2009.

C. The Plaintiff filed an appeal with the Tax Tribunal on June 1, 2009, but the Director of the Tax Tribunal dismissed the said appeal on December 17, 2009.

[Reasons for Recognition] Each entry, 1, 2, 3, 6, 7, and 1 (including the serial number), 1, 2, 3, 6, 7 and the purport of the whole pleadings

2. Whether the instant disposition was lawful

A. The parties' assertion

1) The plaintiff's assertion

ThisA purchased the instant assets from the former owner and leased them to the Plaintiff. On the Plaintiff’s account books, the Plaintiff’s total of KRW 200 million facilities, including KRW 200 million facilities attached to the private teaching institute and KRW 200 million facilities, were appropriated as the assets of the Plaintiff’s legal entity, and the Plaintiff actually owned the same goods and leased them from the Plaintiff. Accordingly, the Plaintiff inevitably treated the instant assets as deductible expenses by means of depreciation in order to manage the accounts in accord with the actual state of such inconsistency. The Plaintiff’s act cannot be deemed as a case where the taxpayer evaded national taxes by fraud or other unlawful acts. Therefore, the instant disposition was unlawful even though the duty to pay taxes was extinguished by the lapse of five years.

2) The defendant's assertion

ThisA’s act of accounting of the instant assets owned by the Plaintiff as owned by the Plaintiff Corporation and of falsely appropriating the depreciation costs of the processed assets to deductible expenses constitutes fraud or other unlawful acts, and thus, the exclusion period for imposition of ten years under Article 26-2(1)1 of the Framework Act on National Taxes shall be deemed lawful.

3. Determination

(a) The meaning of fraud and other unlawful act

1) Article 26-2(1) of the Framework Act on National Taxes provides for the exclusion period for the assessment of national taxes. Article 26-2(1) provides for the exclusion period for 10 years from the date on which the national tax is assessable if the taxpayer evades, receives a refund or deduction by deceit or other unlawful means (Article 1) and 7 years from the date on which the national tax is assessable if the taxpayer fails to file a return within the statutory due date of return, and 5 years (Article 26-2(1)) from the date on which the national tax is assessable if the taxpayer does not fall under

2) Article 26-2(1)1 of the Framework Act on National Taxes can be interpreted as a uniform interpretation with the "Fraud or other unlawful acts" under Article 9 of the Punishment of Tax Evaders Act. "Fraud or other unlawful acts" under Article 9 of the Punishment of Tax Evaders Act mean acts which enable tax evasion and which are recognized as illegitimate under social norms, i.e., acts which are recognized as acts which make it impossible or considerably difficult to impose and collect taxes, i.e., deceptive or other active acts which are deemed unfair under social norms. It does not constitute mere failure to report under the tax law or making a false report without accompanying such acts, but it does not constitute the act of not merely failure to report under the tax law or making a false report, but in addition to circumstances where active concealment intent, such as false entry in the account book, it may be recognized as making it impossible or remarkably difficult to impose taxes (see, e.g., Supreme Court Decision 2006Do5041, Aug. 23, 2007).

3) Therefore, in order to constitute “Fraud and other unlawful acts” under Article 26-2(1)1 of the Framework Act on National Taxes, there was ① intent to evade tax, ② deceptive scheme or other active act that makes it impossible or considerably difficult to impose and collect tax as a means thereof, and ③ thereby, there should be a causal link that makes it impossible or considerably difficult to impose and collect tax.

(b) Fact of recognition;

The following facts may be recognized by taking into account the following facts: Gap evidence 5, 8 to 11, Eul evidence 5 to 8, and witness evidence of this A, the purpose of the entire pleadings, as a whole.

1) 이AA는 1999. 11. 15. 김@@ 및 원고 법인의 종전 대표이사이었던 김JS으로부터 자동자운전학원의 부지 3필지(인천 남동구 BB동 67 잡종지 430㎡, 같은 동 68-5 잡종지 3,418㎡, 같은 동 66-21 잡종지 6.136㎡ 이하 '이 사건 부지'라 한다)와 지상 건물 3동 및 이 각 토지 지상의 자동차운전전문학원 관련 운영권 및 시설일체를 27억 원에 매수하였는데 위 매매계약 당시 이 사건 자산인 학원 내의 모든 차량 및 집 기비품, 시설물을 이AA가 승계한다는 내용을 명시하였다.

2) The Plaintiff, while leasing the instant land and assets from thisA, appropriated only KRW 800,00,000,000 for the lease deposit. This was reported that the sales from the said lease amount was KRW 30,246,575 for the second term of 200,00, KRW 22,882,191 for the first term of 201, and KRW 23,263,561 for the second term of 201, and paid the value-added tax in total from 2002 to 202.

3) Following the expropriation of the instant site, on June 10, 2003, the Plaintiff received the total of KRW 99 million compensation for business suspension and KRW 265 million for the transfer of the instant property and KRW 364.5 million for the instant property, and filed a report on corporate tax for the year 2003, without including it in gross income.

4) Accordingly, on July 23, 2007, the Defendant included the entire amount of the compensation received by the Plaintiff from the Korea National Housing Corporation in the gross income, disposed of as a representative bonus, and notified the Plaintiff of the rectification and notification of the corporate tax of KRW 145,755,250 for the year 2003 (hereinafter “the previous disposition”).

5) On October 12, 2007, the Plaintiff filed a request for a trial with the Tax Tribunal on the previous disposition of this case to the effect that since the assets of this case were owned by an individual of this case, the compensation should not be included in the gross income of the Plaintiff corporation. As a result, the Plaintiff made a decision to reduce the corporate tax and bonus disposition against the transfer cost of the facilities of this case, 265 million won, excluding the compensation for business suspension, from the transfer cost of the facilities of this case to the owner of the assets of this case.

6) Accordingly, according to the purport of the above decision, the Defendant corrected the amount of the corporate tax for the year 2003, and subsequently disposed of the KRW 600,000,000 appropriated as the processed asset by the Plaintiff as the processed asset with respect to the instant assets, and disposed of the instant disposition by non-Inclusion in deductible expenses.

C. Determination

On November 15, 199, the above facts are as follows. ① If the assets of this case do not fall under the registered or recorded assets, and the plaintiff or thisA does not disclose them accurately, the tax authority, the defendant cannot know the actual owner of the assets. When considering the nature and specific details of the assets of this case, if the plaintiff appears to be the inherent assets of the driver training school that had been the plaintiff at the time, it would be the plaintiff's assets. ② The Korea National Housing Corporation considers the assets of this case as the ownership of the plaintiff and pays the plaintiff the transfer cost of the assets of this case to the plaintiff. ③ If the assets of this case, which were appropriated as the assets of the plaintiff corporation, were transferred to the private individual of this case on November 15, 199, the plaintiff corporation deleted the book value of the assets of this case at the time of disposal and disposed of the difference between the disposal value and the disposal value as the basic principle of corporate accounting, and the plaintiff merely did not report income under the tax law, but did not use the processed assets of this case as losses of the plaintiff, and did not use the assets of this case as losses of this case.

Therefore, the plaintiff's assertion is without merit.

4. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.