Cho High Court Decision 2009Da0110 ( October 18, 2009)

The act of submitting at the time of reporting the certificate of approval to prepare a double contract constitutes fraud or other improper means.

With respect to the transfer income tax that is determined on the tax base of the tax return by the taxpayer, the act of preparing and submitting a sales contract among the two false two false statements in which the amount of transfer is excessively entered in order to grant credibility by underreporting the amount of transfer report and to conceal the actual transaction amount is considered as fraudulent or

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

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

Article 96 (Transfer Price)

1. All of the plaintiffs' claims are dismissed.

2. The plaintiffs who suffered the costs of lawsuit are assessed against them.

On October 5, 2008, the Defendant revoked each transfer income tax imposition disposition against the Plaintiffs.

1. Circumstances of the disposition;

가. 원고들은 2002. 5. 2. 서귀포시 성산읍 ●●리 1840 임야 20,965㎡(이하 '이 사건 부동산'이라 한다)를 공통으로 취득하였고(각 1/2 지분), 2002. 12. 6. 위 지분 전부를 주식회사 제일디엔시에 양도하였는데, 원고 배★★은 2003. 1. 21., 원고 김○○은 2002. 11. 27. 각 양도소득세 예정신고를 하면서 검인계약서상의 매매가격으로 취득가격 66,000,000원, 양도가액 99,000,000원을 기재하여 양도소득세 신고를 하였다.

B. Thereafter, the defendant confirmed that the plaintiffs acquired the real estate of this case in 253,50,000 won and transferred it in 355,100,000 won, and that the plaintiffs' preliminary return of capital gains tax was made at the sale price on the stamp contract which is not the real transaction price, on October 5, 2008, by considering that the scheduled return of capital gains tax falls under "the case of evading national taxes by fraudulent or other unlawful act to which the exclusion period of imposition is applied for 10 years under Article 26-2 (1) 1 of the Framework Act on National Taxes" and thus, on October 5, 2008, the defendant imposed capital gains tax of 22.071.460 won

C. The Plaintiffs filed an appeal with the Tax Tribunal on December 24, 2008 regarding the instant disposition, but the Tax Tribunal dismissed their respective claims on March 18, 2009.

[Ground of recognition] Facts without dispute, Gap 1, 2 evidence, 1, 4, 5 evidence (including each number), the purport of the whole pleadings

2. Whether the instant disposition is lawful

(a) Relevant statutes;

The entries in the attached Table-related statutes are as follows.

(b)the master and determination;

1) First, the Plaintiffs asserted that the disposition of this case was unlawful since five years have passed since the Plaintiff’s return of transfer value was made by underreporting the transfer value with the purchase price stated in the seal of approval agreement and did not constitute fraudulent or other unlawful acts as stipulated in Article 26-2(1)1 of this Act, since the Plaintiff’s return of transfer income tax did not constitute fraudulent or other unlawful acts.

However, 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 the national tax can be imposed in cases where taxes are issued as "Fraud or other unlawful acts". "Fraud or other unlawful acts" in this context refers to a deceptive scheme or other unlawful acts that make it considerably difficult or considerably difficult to assess the effective tax amount. It does not constitute mere failure to file a tax return under the tax law or failure to file a false tax return or pay a tax without accompanying such acts (see Supreme Court Decision 97Do2429, May 8, 1998). However, in determining the tax base based on the reported value, the taxpayer’s filing a false tax return in return for the amount of taxes, giving credibility to the taxpayer, and preparing and submitting a false contract in which the sales price is under way to conceal the actual transaction price, which constitutes "Fraud or other unlawful acts that make it substantially difficult to impose and collect taxes as active deceptive acts" (see Supreme Court Decision 201Do614, Jun. 314, 2014).

In this case, the plaintiffs acquired and owned 1/2 shares of the real estate of this case on May 2, 2002, and transferred all shares of this case to DDD Co., Ltd. on December 6, 2002. However, the plaintiffs made a preliminary return of capital gains tax by stating the acquisition price of 66,00,000, transfer price of 9,000,000 as the purchase price on the corporate contract at the time of the time of the preliminary return of capital gains tax, as seen above. In full view of each of the arguments stated in Eul 1 through 5 (including each natural disaster), the plaintiffs actually acquired 253,50,000 won and transferred the real estate of this case to 35,100,000 won, and made two sales contracts to transfer them to 35,100,000 won, and it is difficult for the plaintiffs to recognize credibility of the provisional return of capital gains tax by taking account of the following reasons: the plaintiffs' acts to establish the tax base of the provisional return to 2000.

2) 원고들은 다음으로, 이 사건 부동산의 양도는 원고 배★★의 사위인 오☆☆의 투 병비용 마련을 위한 부득이한 것으로서 단기매매차익을 목적으로 거래한 것이 아니므로 세액산정에 있어 기준시가에 의하여야 하는데, 원고들은 기준시가보다 높은 양도가를 기재한 검인계약서상 매매가액대로 양도소득세 예정신고를 하였는바, 원고들의 양도소득세 신고는 국세기본법 제26조의2 제1항 제1호 소정 사기 기타 부정한 행위에 해당하지 아니하므로, 이 사건 처분은 부파권의 제척기간인 5년이 경과된 후에 이루어 진 것이어서 위법하다고 주장한다.

살피건대, 갑 4, 5호증의 각 기재에 변론 전체의 취지를 종합하면, 원고 배★★의 사위 오☆☆이 2001. 9. 26.부터 뇌종양으로 투병하다가 2003. 3. 10. 사망한 사실을 인정할 수 있으나 위와 같은 사정을 들어 소득세법 제96조 제4항, 같은 법 시행령 제162조의2 제4항 소정의 '부득이한 사유로 인하여 취득 후 1년 이내에 양도하는 경우로서 부동산의 취득 또는 양도의 경위와 그 이용실태 풍에 비추어 단기매매차익을 목적으로 거래한 것이 아니라고 인정되는 때'에 해당한다고 볼 수는 없다 할 것인바, 원고들의 이 사건 부동산 양도에 관하여 기준시가에 의하여 세액산정을 할 수는 없다 할 것이다.

3) Sub-decisions

Therefore, since the plaintiffs were to evade national taxes due to "Fraud or other unlawful acts", the exclusion period of the right to impose capital gains tax on the transfer of real estate in this case falls under ten years. Since the disposition in this case was made before the exclusion period of the right to impose capital gains tax expires, the disposition in this case is legitimate.

3. Conclusion

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