2013west 3694 ( November 19, 2013)

Whether the old house transfer contract can be seen as a false double contract

In order to grant credibility to the false declaration price and to conceal the actual transaction price, preparing and submitting a false contract which states the price less than the sale price together with the false contract shall be active deception, which constitutes fraud or other improper acts.

Article 26-2 of Framework Act

Seoul Administrative Court 2014Guhap50491

xa

The Director of the sericultural Tax Office

2014.11

2014.05.02

1. The plaintiff's claim is dismissed.

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

The imposition of global income tax of KRW 00,000,000 (including additional tax) imposed on the Plaintiff on March 7, 2013 shall be revoked.

1. Details of the disposition;

A. From April 1, 200 to September 10, 2000, the Plaintiff registered the housing construction and sales business for "Seoul Songpa-gu 000-00, 000-00, from September 25, 2000 to June 1, 2004", "Seoul Songpa-dong 00-00, 14 October 14, 2002 to June 1, 2004", "Seoul Songpa-gu 000-00, 000-0, 2007, from March 8, 2004 to December 31, 2007.

B. (1) On April 30, 2001, the Plaintiff: (a) from BB on April 30, 2001, 00-0 square meters in Songpa-gu, Songpa-gu, Seoul (247.12 square meters)

H) Purchasing the instant land and the above ground buildings (hereinafter referred to as the “former Housing”) and the above ground buildings

After removing B, on October 9, 2001, the head of Songpa-gu reported the commencement of 12 households of multi-household housing to the head of Songpa-gu.

(2) On March 12, 2002, the Plaintiff drafted a sales contract with the content that he sells a multi-household house (hereinafter referred to as a "multi-household house") which was newly constructed on March 12, 2002 in the purchase price of KRW 000,000 (hereinafter referred to as a "sales contract on March 12, 2002") and ② March 20, 2002 (the date of the contract shall be January 5, 2002) sell the instant land and Gu house in KRW 390,000 won (hereinafter referred to as the "sales contract on March 20, 2002").

(3) On March 25, 2002, the Plaintiff attached a sales contract on March 20, 2002 to the Defendant, and reported and paid the transfer income tax for KRW 000 million to the Defendant.

C. (1) On March 7, 2013, the director of the tax office: (a) The transfer of a new house constitutes a type of housing construction and sales business;

The business subject to consolidated income tax is the amount of sales proceeds of new houses upon filing a global income tax return.

In the process, the act of preparing a double sales contract is false or fraudulent.

The exclusion period of imposition is 10 years since it constitutes an act in which the purchase price is 0 billion won, on the ground that "the exclusion period of imposition is 10 years."

In 200, the Plaintiff revised and notified the global income tax of KRW 000,000,000 (including additional tax) (hereinafter referred to as the “instant disposition”), including the business income, to the Plaintiff (hereinafter referred to as “instant disposition”).

(2) Meanwhile, around May 2013, a 00-year-old book was newly established, and the Defendant has jurisdiction over the Plaintiff’s residence.

was made.

D. The Plaintiff appealed and filed an objection on May 27, 2013, but on July 25, 2013, Seoul Regional Area.

Upon receipt of a decision of dismissal from the Commissioner of the National Tax Service. The Plaintiff filed an appeal on August 5, 2013, but received a decision of dismissal from the Tax Tribunal on November 19, 2013.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1-1, 2, 2, 4, 5, 6, Eul evidence Nos. 1, 2, 4, 5 and 7, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) On March 12, 2002, items subject to a sales contract on March 12, 2002 are new houses and sales contract on March 20, 2002

In light of the fact that the object of the contract is a old house, it does not constitute a double contract, and the sales contract dated March 20, 2002, prepared by a special agreement on March 12, 2002, which decided to change the name of the owner after the payment of intermediate payment. Considering the fact that at the time, a report on the destruction of a previous house or a registration for the destruction of a loss was not made, and is included in the sale subject, it is merely a simple underreporting that the disposition of this case did not be reported as the amount of global income as the amount of global income under the sales contract dated March 12, 2002.

(2) Since a new house was constructed only up to 2/3 at the time of transfer, it does not constitute a building under the Building Act because it does not meet the form of an independent building; even if a new building is transferred, it does not constitute a new house construction sale; and the purchase price cannot be deemed as a revenue amount of the Housing Construction and Sales Business; thus, it is problematic only for capital gains tax; on the other hand, the transfer of a new house is exempt from taxation; KRW 390 million.

- down payment of 40 million won

- The intermediate payment of KRW 200 million, paid on February 25, 2002

- Balance: 150 million won (payment on March 20, 2002)

○ Contract Date: January 5, 2002

○ Sales Amount: 1.470 million won

- down payment of 50 million won

- The intermediate payment of KRW 100 million (Payments 27, 2002)

KRW 200,000 (Payments 7, 2002)

- Balance 110 million won (payment on May 2002 on the date of approval for use)

○ The delivery date of real estate: the date of approval for use on April 2002

○ Matters of the special agreement

1.This contract is a sales contract for multi-households (12 households) in the process of new construction.

2. A seller shall perform the work in consultation with the buyer to ensure that any defect does not occur in good faith and sincerity as a result of the design drawing for which the building permit has been granted;

3. The buyer shall decide to change the name of the owner after the intermediate payment is made and the buyer shall issue necessary documents to the seller;

4. The 11 household, excluding subparagraph 501 (the main floor), shall be leased by a seller in consultation with a buyer on his/her responsibility, and the rental deposit shall be appropriated for the balance from sale and purchase, and the balance shall be settled at the time of balance;

5. Other matters shall be handled by mutual agreement according to the custom at the time of sale and purchase of real estate.

6. The balance settlement shall be the date of receipt of registration for preservation.

In light of the fact that only the transfer cost of the instant land is subject to capital gains tax, the instant disposition, which was taken by deeming it as subject to global income tax, is unlawful.

(b) Related statutes;

It is as shown in the attached Table related statutes.

(c) Fact of recognition;

(1) Details of a sales contract

(A) A sales contract (new house) dated March 12, 2002

(B) A sales contract (former Housing) dated March 20, 2002

(2) Alteration of rights to old houses and new houses

(A) According to the sales contract dated April 4, 2002, 2002, the registration of ownership transfer for the instant land was completed, and the owner of the old house was registered in the building ledger.

In addition, on April 12, 2002, the name of the new house owner was changed to the CC.

(B) The construction permit date for a new house is June 18, 2001, and the commencement date is October 9, 2001.

(C) On April 30, 2002, ChoCC and ChoiD obtained approval from the head of Songpa-gu Seoul Metropolitan Government for the use of a new house, and completed registration of the preservation of ownership on May 24, 2002. Meanwhile, ChoCC and ChoiD completed registration on the old house on the ground of the destruction on May 18, 2002 of the former house on May 20, 2002.

(3) On March 27, 2008, the MediationCC entered into a contract with the public official in charge of the defendant on the condition that "the plaintiff completed the multi-household house under construction to the extent of 2/3 of the building process, and the relation purchased before completion was changed in the name of the building owner and registered the preservation of ownership."

[Reasons for Recognition] Evidence Nos. 3 through 9, Evidence No. 3-2, and the purport of the whole pleadings

D. Determination

(1) As to the corresponding business income

(A) Article 19(1) of the Income Tax Act (amended by Act No. 8144 of Dec. 30, 2006)

According to subparagraph 6 and Article 32 (1) 1 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 19327 of Feb. 9, 2006), business income includes income generated from the housing construction and sales business that constructs and sells housing.

In this context, income from new construction and sale of a house corresponding to business income is income from the new construction and sale of a house carried out as business activities, and transfer income is income from the mere transfer of a specific asset. Therefore, whether income from the sale of a new house falls under business income or transfer income under the Income Tax Act shall be determined in accordance with the generally accepted social norms in light of whether the house was newly built and sold or traded for the purpose of earning a profit from the sale and purchase of the house, and the type and size of the newly built house, its use status, its retention period, its scale and frequency, transaction records, etc. In making such determination, not only for the real estate being the object of the relevant transfer, but also for the entire real estate owned by the transferor, but also for all the circumstances before and after the time the relevant transfer took place (see Supreme Court Decision 2008Du21768, Jul. 22, 2010).

(B) The health team of this case, ① CCC entered into a contract under the condition of construction of 2/3 of the building process with the Defendant’s public official; ② CCC submitted a written confirmation to the Defendant’s public official; on June 18, 2001, the building permit date for the new house was October 9, 2001; and on March 12, 2002, the sales contract for the new house was concluded on March 12, 2002, which was five months later; and again on April 30, 2002, which was about one half after the month thereafter.

In light of such circumstances, approval for the use of a new house at the time of conclusion of a sales contract can be inferred to have been included in a building with a roof, columns, or walls (the Plaintiff’s construction was commenced on February 12, 2002 and it was the end of the construction at the time of March 12, 2002). However, from the time of conclusion of a sales contract to the time of conclusion of a sales contract, the period of approval for use is less than one month, and a newly-built house is smaller than 12 households of 5 floors, and it is difficult to believe the Plaintiff’s above assertion). ② According to the sales contract dated March 12, 200, the written statement of the Mediation Committee (No. 3-2), and the written statement on March 12, 202 (No. 3-2), it is reasonable to deem that the seller will consult with the purchaser to ensure that all processes were not defective in good faith as stated in the construction plan, and that the construction cost was newly constructed and sold by 200 million won, including the sale price for new housing.

In addition, considering the fact that the Plaintiff has conducted business registration for the Housing Construction and Sales Business Act four times from April 1, 200 to December 31, 2007 and newly constructed and sold a house, the Plaintiff acquired the instant land and the old house for the purpose of removing the old house and newly constructing a new house, and the size of the new house reaches 12 households of five stories, etc., the Plaintiff’s act of newly constructing and selling a new house can be deemed to have been conducted with continuity and repetition to the extent that it can be seen as business for profit-making purposes. Thus, income from the instant land and the sale of a new house constitutes business income.

(2) As to the exclusion period of imposition

(A) According to Article 26-2(1) of the Framework Act on National Taxes (amended by Act No. 7329, Jan. 5, 2005; hereinafter the same), national taxes may not be imposed after the lapse of five years from the date on which the national taxes may be imposed ( Subparagraph 3): Provided, That where a taxpayer evades national taxes or obtains refund or deduction by fraudulent or other unlawful means, it shall not be imposed after the lapse of ten years ( Subparagraph 1); where a taxpayer fails to file a tax base return within the statutory due date of return, it shall not be imposed after the lapse of seven years ( Subparagraph 2). Any disposition taken after the expiration of the exclusion period of the imposition of national taxes is null and void (see Supreme Court Decision 2008Du109522, Dec. 23, 2010). "Fraud or other unlawful acts" under Article 26-2(1)1 of the Framework Act on National Taxes is an act that enables the evasion of taxes, that is, an act recognized by social norms, such as fraudulent or other unlawful acts.

or the filing of a false declaration does not constitute such a violation; or

In addition to the circumstances where active concealment intention appears, such as the failure to report or underreporting the object and the false recording in the account book, the repeated use of multiple borrowed accounts, etc.

may be recognized as making it impossible or considerably difficult to impose and collect taxes (by law).

See Supreme Court Decision 2010Do13345 Decided March 24, 2011

(B) In light of the fact that the instant case was entered into a public health stand, and that there was an agreement to change the name of the owner after paying a middle contract on March 12, 2002, and that in order to change the name of the owner, a sales contract is necessary, on the other hand, a new house is being newly constructed, and the construction cost is included in the sales price under the sales contract of March 12, 2002, as well as in the sales price under the sales contract of March 12, 2002, there is a possibility that the sales contract over the instant land and the previous house was necessary.

① However, the former house was already destroyed at the time of the sales contract for the new house (O. 9. 201). Nevertheless, the Plaintiff prepared a sales contract for the old house as it existed on March 20, 202. The destruction or registration for the old house was delayed on May 20, 202, and the cause thereof was also destroyed on May 18, 2002. Thus, the Plaintiff appears to have lawfully sold the land under the sales contract for the new house. ② The construction permit was valid for the acquisition tax for the new house under Article 6(1)1 of the Enforcement Rule of the Building Act (amended by Ordinance No. 459, Jul. 18, 2005). Since it was impossible to obtain the ownership transfer registration for the new house under Article 20 of the former Housing Construction and Transportation, the Plaintiff may also obtain the ownership transfer registration for the new house under the name of the owner of the building by submitting the sale contract for the new house to the owner of the building.

3. Conclusion

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

Judges Doing the presiding judge

Judges Kim Jong-won

Judges Domination

Related Acts and subordinate statutes

▣ 국세기본법(2005. 1. 5. 법률 제7329호로 개정되기 전의 것)

Article 26-2 (Period for Excluding Assessment of National Tax)

(1) No national tax may be imposed after the period prescribed in the following subparagraphs expires: Provided, That the avoidance of double taxation against a tax shall be levied:

Where the mutual agreement procedures are in progress under the provisions of a treaty concluded for the purpose of this Treaty (hereinafter referred to as the “tax treaty”).

Article 25 of the Adjustment of International Taxes Act shall apply.

1. Where a taxpayer evades a national tax, or is refunded or deducted by fraudulent or other unlawful means, the imposition of the relevant national tax;

for a period of 10 years from the date such

2. If the taxpayer fails to file a written tax base return within the legal return term, the national tax may be assessed;

for 7 years from the date of such

3. If it does not fall under subparagraphs 1 and 2 above, for five years from the day on which the national tax is assessable; and

4. Notwithstanding the provisions of subparagraphs 1 through 3, in cases of the inheritance and gift taxes, for ten years from the date on which it is assessable: Provided, That this shall not apply.

In cases falling under any of the following items, it shall be fifteen years from the date on which it is assessable:

(a) Where a taxpayer evades inheritance tax or gift tax, or is refunded or deducted by fraudulent or other unlawful means;

(b) Where the written return is not filed under Articles 67 and 68 of the Inheritance Tax and Gift Tax Act; and

(c) The permission that is granted by the person who files the return under Articles 67 and 68 of the Inheritance Tax and Gift Tax Act; and

In case of filing a false or omitted return (limited to the portion of such false or omitted return)

▣ 소득세법(2006. 12. 30. 법률 제8144호로 개정되기 전의 것)

Article 19 (Business Income)

(1) Business income shall be the following income generated during the relevant year:

6. Incomes accruing from the construction business (including the housing construction and sales business as prescribed by the Presidential Decree; hereinafter the same shall apply);

Article 80 (Settlement and Correction)

(2) A regional tax office having jurisdiction over the place of tax payment or the director of a regional tax office shall make a taxation table under the provisions of Articles 70 through 72

Where a person who has filed a quasi-determined return falls under any of the following cases, the corrected tax base and tax amount for the relevant year:

(c)

1. Where an omission or error exists in the contents of return;

(3) The director of the regional tax office or the director of the regional tax office having jurisdiction over the tax payment place shall

Where the tax amount is determined or corrected, it shall be based on books and other documentary evidence: Provided, That it shall be based on the Presidential Decree.

If it is impossible to calculate the income amount by account books or other documentary evidence, it shall be determined by the Presidential Decree.

the income amount may be estimated and determined under the conditions as prescribed by the Presidential Decree.

▣ 소득세법 시행령(2006. 2. 9. 대통령령 제19327호로 개정되기 전의 것)

Article 32 (Scope of Housing Construction and Sales Business)

(1) "Housing construction and sales business prescribed by Presidential Decree" in Article 19 (1) 6 of the Act means any of the following:

(c)

1. Business of constructing and selling the housing; and

- 12-

(2) In applying the provisions of paragraph (1), housing shall have the area of land attached thereto, on which the building is built.

The land shall be deemed to include the land within the area calculated by multiplying the ratio under paragraph (7) of this Article by the size.

(3) Buildings for other purposes, such as stores established as part of houses, or the same lot number (other buildings within complexes with similar residential conditions).

A building for other purposes (hereafter in this paragraph, referred to as a "building for other purposes") set up on the building (including a lot number)

(1) In the case of a building, the building for other purposes and the land attached thereto shall be the house as prescribed in paragraph (1).

It shall be excluded from paragraph (1), and in cases falling under any of the following subparagraphs, the whole shall be made pursuant to paragraph (1):

In this case, the provisions of Article 154 (4) shall be applied to the calculation of the area of land attached to a building.

The provisions shall apply mutatis mutandis.

1. In case where the house and other buildings are sold or purchased respectively by a unit, the area of the building for other purposes;

not more than 10/100 of the Act;

2. Other purposes, such as sale and purchase of a building appurtenant to a house and a house as a unit of sale.

the building area is smaller than the housing area;

(4) Where housing prescribed in paragraph (1) and buildings for other purposes are newly constructed and sold, they shall be divided and sold.

shall be divided in accordance with the Ordinance of the Ministry of Finance and Economy if there are common necessary expenses.

(c)

▣ 건축법

Article 2 (Definitions)

(1) The terms used in this Act shall be defined as follows:

2. The term "building" means a structure fixed on land, with a roof and columns or walls and facilities appurtenant thereto;

An office, performance place, store, garage, garage, warehouse installed in an underground or high-rise structure, or any other office, performance place, store, garage, or warehouse prescribed by Presidential Decree.

means that.

▣ 건축법 시행규칙(2005. 7. 18. 건설교통부령 제459호로 개정되기 전의 것)

Article 6 (Application for Building Permits, etc.)

(1) A building (temporary building under Article 15 (1) of the Act) pursuant to Article 8 (1) of the Act and Article 9 (1) of the Decree.

A person who intends to obtain a building permit under attached Form 1 shall file an application for permission for construction in attached Form 1 with the following:

Documents and books attached thereto to the permission granter as prescribed in Article 8 (1) of the Act (hereinafter referred to as the “permission granter”).

section 23.

1. Documents proving the scope of the site to be constructed and the right to own or use the site (for sale in lots);

Where a multi-family housing is constructed, the scope of the site to be constructed and the certificate of rights to the ownership of the site.

[Documents]

2. In a case where the basic design documents in the attached Table 2 are constructed under the standard design documents as prescribed in Article 19 (4) of the Act;

Only a construction plan and placement plan)

3. Ship delivery levels under relevant Acts and subordinate statutes for obtaining permission, etc. or making a report, under each subparagraph of Article 8 (5) of the Act;

application and required documents that are mandatory (if any)

Article 11 (Reporting on Change of Construction Participants)

(1) A person who has obtained permission or made a report on construction or large-scale repair pursuant to Articles 8 and 9 of the Act shall be:

Where a person falls under any of the following subparagraphs, the transferee, heir, or corporation that continues or is established after the merger shall submit a report on the change in attached Form 4 to the permitting authority.

1. Where a building under construction or substantial repair is acquired;

2. Where the project owner who has obtained permission or filed a report dies;

3. Where a corporation which has obtained permission or filed a report merges with another corporation.

(2) When a project owner changes the contractor or project supervisor, he/she shall do so within seven days from the date of such change.

A report on a change of construction participants to the permitting authority shall be submitted.

(3) Where the permission granter receives a report on the change of construction participants as referred to in paragraphs (1) and (2), he shall confirm the details of the report.

After that, a certificate of change of construction participants in attached Form 5 shall be issued to the reporter.