In order to ensure that the taxation is void as a matter of course, it is not sufficient to say that there is an illegal cause, and the defect must be serious and clear.

Where the tax authority intends to impose a tax, it shall determine the tax base and the tax amount in a timely and remote manner, without any basis, by fully disregarding the investigation method prescribed by the relevant tax laws and regulations. If the tax authority imposes a tax, it shall be deemed that the defect is significant and obvious, but if it is found that there is an error of law, such as simple mistake of taxable objects, error in the method of investigation, and error in the calculation of the tax amount, it shall be

Article 96 of the Income Tax Act

2012 Gohap47147 Return of Unjust Enrichment

jAA

Korea

September 4, 2012

October 11, 2012

1. The plaintiff's claim is dismissed.

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

The defendant shall pay to the plaintiff 00 won with 20% interest per annum from the day following the day of service of a copy of the complaint of this case to the day of complete payment.

1. Basic facts

A. On January 31, 2001, the Plaintiff purchased 00,000,000,033.2 square meters and 7-story OO buildings on its ground (hereinafter “instant real estate”), sold 000 won to bothCC on January 20, 2004, and completed the registration of ownership transfer in the future of bothCC.

B. In relation to the sale of the instant real estate, the Plaintiff reported to the date of acquisition on January 31, 2002, the acquisition value of 000, and the transfer value of 000 won, and voluntarily paid KRW 000 and resident tax, on April 30, 2004.

C. In around 2007, the Central and Regional Tax Office confirmed that the actual transfer value of the instant real estate was KRW 000, and notified it to the North Incheon National Tax Office, and filed a complaint against the Plaintiff in violation of the Punishment of Tax Evaders Act.

D. In applying Article 96 (1) 6 of the former Income Tax Act (amended by Act No. 7837 of Dec. 31, 2005, hereinafter referred to as the "former Income Tax Act") and the proviso of Article 114 (4) of the former Income Tax Act, the tax base of the real estate in this case was corrected to 00 won based on the actual transaction price, and on February 1, 2008, the amount of capital gains tax evasion (=00 won-00 won-00 won), and the additional 000 won for the insincereful payment and the additional 00 won for the amount of tax evasion (hereinafter referred to as the "tax disposition in this case").

E. The Plaintiff paid 000 won in total, including the above OOO and additional 000 won, on several occasions from November 24, 2008 to March 5, 2009.

F. The Plaintiff was charged with evading capital gains tax of 000 won on June 12, 2008. On November 13, 2008, the court of first instance found the Defendant guilty of all the charges (Seoul District Court 2008 High Court 2008 High Court 2008 High Court 2536), but the court of first instance found the Defendant not guilty of the part exceeding the capital gains tax evasion amount calculated on the basis of the standard market price of the above 100 won on September 30, 2009 on the basis of the standard market price reported by the taxpayer pursuant to Article 96 (1) 6 of the former Income Tax Act (Article 96 (1) 6 of the former Income Tax Act). If the tax authority confirms the actual transaction price under the proviso to Article 114 (4) of the same Act, it shall calculate the capital gains tax based on the standard market price, and it shall be interpreted that the capital gains tax calculated on the verified value does not exceed the capital gains tax calculated on the basis of the standard market price.

[Reasons for Recognition]: Facts without dispute, evidence A to 9, and evidence A to 1 (if ........ are included) and the purport of the entire pleadings

2. Determination

A. Summary of the plaintiff's assertion

The instant taxation disposition should have been calculated on the basis of the market price, but it is invalid due to significant and apparent defects calculated on the basis of the actual transaction price. Therefore, the Defendant receives 00 won remaining after deducting 000 won, which is the actual evaded amount, from the amount paid by the Plaintiff, without any legal grounds, and return it to the Plaintiff as unjust enrichment.

B. Relevant provisions of the former Income Tax Act

Attached Descriptions (Omission)

C. Determination

1) The instant taxation disposition is a fair administrative disposition, so long as it is valid, unless it is revoked through administrative litigation, etc., or if it is significant and clear that the defect existing in the disposition is null and void, it cannot be said that unjust enrichment is established by the Defendant by acquiring it without any legal cause. In addition, for the purpose of the taxation disposition to be null and void, it is insufficient to say that there is an illegal cause, and that the defect is in contravention of the important laws and regulations, and it must be objectively obvious, and that it is necessary to reasonably consider the characteristics of the specific case itself at the same time in order to determine whether it is significant and obvious. From this point of view, if the tax office intends to impose a tax, it is necessary to determine the tax base based on the correct basis obtained in accordance with the investigation method stipulated by the relevant tax law, and to calculate the tax base amount, and if it is determined by the legitimate method without any grounds, it is also necessary to determine the tax base amount and tax amount by 96 per se, and it is also necessary to determine the tax base amount and tax amount by 96 per se.

2) According to the above basic facts, the tax assessment in this case was made based on the actual transaction price confirmed by the government office based on Article 96 (1) 6 of the former Income Tax Act and the proviso of Article 114 (4) of the former Income Tax Act. The proviso of Article 114 (4) of the former Income Tax Act merely provides that "if the actual transaction price is confirmed, the verified price shall be the transfer price or acquisition price, and shall be the correction of the transfer income tax base and tax amount." In this case, there is no provision regarding whether it is limited to the extent that does not exceed the transfer income tax calculated by the standard market price. In addition, the legislative purpose of the proviso of Article 114 (4) of the former Income Tax Act is to transfer real estate and then make a preliminary return or final return on tax base of transfer income based on the actual transaction price different from the fact, even if the actual transaction price is confirmed by the tax office, the taxpayer may again make a tax return according to the standard market price, and even if a false return is found after it was made by a false return, it increases awareness that the amount calculated as the standard market price and tax base price.

3) In light of the above point, it appears that the tax amount was calculated through a legitimate investigation based on the relevant statute, and even if there was a fault in calculating the tax amount in the instant tax disposition, it is only a defect in the construction room for different interpretation since the proviso of Article 114(4) of the former Income Tax Act is not clearly defined, and it cannot be deemed as a grave and apparent defect to the extent that the instant tax disposition is null and void as a matter of course. Therefore, the Plaintiff’s instant claim based on the premise that the instant tax disposition is null and void as a matter of course is without merit.

3. Conclusion

The plaintiff's claim is dismissed.