Seocho 2014west0421 (Law No. 146.30)

The scope of active misconduct that makes it impossible or considerably difficult to impose or collect taxes;

The active creation of false appearance for the purpose of applying special cases of non-taxation constitutes active misconduct that makes it impossible or considerably difficult to impose and collect taxes.

2014Gudan5680 Revocation of Disposition of Imposing capital gains tax

AA

O Head of tax office

November 27, 2014

December 11, 2014

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The Defendant’s disposition of imposition of capital gains tax OOO for the year 2006 against the Plaintiff on September 3, 2013 is revoked.

1. Details of disposition;

A. On March 10, 2003, the Plaintiff acquired OOO-dong 988-4 OO apartment 101 Dong 905 (hereinafter referred to as the “instant apartment”) from OO members and transferred it to OO members on December 26, 2006. On December 27, 2006, the Plaintiff reported and paid the capital gains tax OO members as one house for one household non-taxation on December 27, 2006.

B. Around November 2010, the head of the OOO head of the tax office, after undergoing a tax investigation, deemed that the Plaintiff, a foreign resident, did not meet the requirements for residence for two years, was not subject to non-taxation for one household, and then publicly announced the correction disposition of the OOOO of the transfer income tax for the year 2006, and then notified it to the public for impossibility of service. Upon the issue of the validity of the service, the previous disposition was revoked. On September 3, 2013, the Defendant, as the head of the tax office having jurisdiction over the place for payment of the transfer income tax of the apartment of this case, issued a notice of correction and notification of the transfer income tax for OOO won (including additional

C. The Plaintiff filed an appeal against the instant disposition, but was dismissed by the Tax Tribunal on June 30, 2014.

2. Whether the disposition is lawful;

A. The plaintiff's assertion

In order to apply the exclusion period of imposition under the Framework Act on National Taxes, national taxes shall be evaded, refunded, or deducted by fraud or other improper means. However, only the Plaintiff, a Canadian resident, made a mistake as a resident by himself/herself taking into account his/her domestic residence report or the period of domestic stay, and did not make a false report of capital gains tax by fraud or other improper means. The transfer of apartment in this case shall be subject to the exclusion period of imposition for the ordinary five years, and the instant disposition taken after the expiration of the exclusion period shall be revoked by unlawful means.

B. Relevant statutes

Article 26-2(1) of the Framework Act on National Taxes provides for the exclusion period of the imposition of national taxes and provides for the date on which a taxpayer may impose national taxes for ten years from the date on which the relevant national taxes may be imposed if the taxpayer evades a national tax or obtains a refund or deduction by fraudulent or other unlawful means. Meanwhile, the term “Fraud or other unlawful acts” under the Punishment of Tax Evaders Act means a deceptive scheme or other active act that makes it impossible or considerably difficult to impose or collect taxes as a means of tax evasion, rather than simply failing to file a report under tax law or underreporting the tax base and failing to pay taxes (see, e.g., Supreme Court Decision 2011Do527, Apr. 28, 2011). The aforementioned Act provides for the preparation and receipt of double books, etc., preparation of false or false documents, destruction of books and records, concealment of books and records, concealment of income, profits, transactions, and other unlawful acts or fraudulent means.

(c) Fact of recognition;

The following facts are acknowledged if each of the above evidences added Gap evidence Nos. 4, 5, and Eul evidence Nos. 4 through 8 (including each number):

(1) The Plaintiff’s resident registration was reported on May 30, 200 and cancelled on October 13, 200 due to the departure of Canada immigration on October 13, 200 and the loss of nationality on April 5, 201. With respect to the instant apartment, the Plaintiff’s domestic residence was reported on August 25, 2003, and the Plaintiff’s domestic stay period for two years retroactive from the date of transfer of the said apartment is confirmed to be 272 days in total.

(2) The following is that the Plaintiff filed a report on the transfer income tax under the non-taxation for one household after the transfer of the instant apartment, and submitted it as a supporting material for the requirement of residence for the said two-year apartment.

○ A certificate issued by the OO of the lessee of the instant apartment: from December 24, 2004 to December 24, 2006, the apartment of this case leased the apartment of this case from the Plaintiff to the OO of the deposit money. The child left the Republic of Korea as a US student on January 2005 and leased a small room to the Plaintiff.

○ The certificate of payment of management expenses by the head of the apartment management office of this case: The plaintiff resided in the above apartment for the period from August 2003 to August 2006, and paid the management expenses faithfully.

(3) However, as a result of the tax investigation conducted against the plaintiff around August 2010, it was confirmed that the child of the OOO of the tenant of the apartment building of this case only left the Republic of Korea from January 2005 to December 2005, and thereafter, it was impossible for the plaintiff to live together with the plaintiff because it did not have any surplus, and according to the confirmation of the head of the above apartment management office, the tenant card itself was not owned, it was resided for four months in 2003, and it was confirmed that the OO and the OO, the lessee, paid the management expenses.

D. Determination

Based on the aforementioned facts, the following circumstances are based on the following facts: (i) the Plaintiff submitted active evidence that the Plaintiff satisfied the requirements for the application of the special exemption from taxation, not simply a single house non-taxation or underreporting under the tax law; (ii) the Plaintiff went to immigration and immigration after May 30, 200; (iii) even though the period of stay within the two years prior to the date of the transfer of the apartment of this case did not go to 300 days, the Plaintiff prepared and received a document stating a specific period of time to meet the requirements for residence for the application of the special exemption from taxation from the above lessee and the head of the management office; and (iii) each of the above evidence presented by the Plaintiff to the tax authority as materials for the application of the special exemption from taxation of the apartment of this case; and thus, the Plaintiff appears to have actively created the appearance of the application of the special exemption from taxation; (iv) it does not appear that the Plaintiff merely caused a mistake on the requirements for non-taxation, thereby making it considerably impossible to impose and collect capital gains tax or making it considerably difficult.

Ultimately, the exclusion period of imposition of capital gains tax following the transfer of apartment of this case is ten years, and as long as the disposition of this case was made within ten years from the time when capital gains tax is imposed, the above disposition is not unlawful.

3. Conclusion

The claim is dismissed for lack of reason.