Whether the exclusion period of 10 years may be applied where the fees are omitted by a false agreement.

The time of preparation of a false agreement shall be deemed as the time when the tax return of global income tax for 1995 was filed on the basis of the above false agreement, or there is no evidence to acknowledge that the above agreement was submitted to the tax authority, and thus the exclusion period for imposition of national tax was ten years, and thus, the disposition of this case is unlawful since the exclusion period for the imposition of national tax was imposed.

The exclusion period of imposition of national taxes under Article 26-2 of the Framework Act on National Taxes

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

The Defendant’s imposition of global income tax of KRW 4,578,769,210 against the Plaintiff on January 1, 2005 shall be revoked.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

The reason for this court's implementation is as follows: "The above correction was notified" of the 7th 10th th 10th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th

Therefore, the judgment of the first instance court is legitimate, and the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition.

[Seoul Administrative Court 2006Guu11750 ( October 24, 2007)]

1. The Defendant’s disposition of imposition of KRW 4,578,769,210 on January 1, 2005 against the Plaintiff on January 1, 2005 shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Details of the disposition;

A. As a result of the tax investigation against the plaintiff, the plaintiff accepted a repurchase right-related lawsuit from 43 persons, such as 00 ○○ ○○ ○○ ○○ ○○○ (hereinafter "the clan of this case"). The defendant received 7,934,060,200 won as the fees for the above lawsuit after the settlement on October 12, 1995, but the defendant first received 7,934,060,200 won as the fees for the above lawsuit, other than the agreement that the clan of this case would receive 40% of the economic benefits from the State as the initial contingent fees, 100 million won as the fees for the above litigation case, and reported 7,834,060,200 won as the fees for the above litigation and omitted the above fees for the report and omission thereof shall be deemed to constitute a case of evading national taxes by fraud or other unlawful acts, and by applying the exclusion period for imposition to the plaintiff's global income tax return amount to 1965, 1975.75.

B. On March 29, 2005, the Plaintiff filed a request for adjudgment with the Director of the National Tax Tribunal, but the Director of the National Tax Tribunal dismissed the said request on January 4, 2006.

[Ground of Recognition] Unsatisfy, Gap evidence 1-1, Gap evidence 2-1, and Eul evidence 1

2. Whether the instant disposition is lawful

A. The parties' assertion

(1) The plaintiff's assertion

The disposition of this case had already ceased to be liable for tax payment due to the lapse of five years, which is the exclusion period of national tax assessment, at the time of the disposition of this case for attribution of 195, and even if not, in accepting the lawsuit related to the right of repurchase in this case, some clients entered into a different delegation fee agreement for each client, such as the Plaintiff’s acceptance of the lawsuit related to the right of repurchase, and the Plaintiff’s receipt of the 10-30% delegation fee for some clients, and no additional delegation fee agreement for 10% was entered into with some clients. In addition, there were cases where some clients did not receive the agreed delegation fee agreement, and the amount equivalent to 300% of the amount of the investment amount agreed in the course of soliciting the redemption price, etc. in fact received by the Plaintiff did not have to be paid to investors. Thus, the Plaintiff’

(2) The defendant's assertion

The plaintiff prepared an agreement to receive contingent fees of 40% with respect to the lawsuit related to the right of repurchase in this case, and prepared a false agreement to receive fees of 7,934,060,200 won equivalent to 40% of the economic interest of the state, while the clans, etc. in this case received contingent fees of 7,934,060,200 won, and reported only 100 million won as revenue amount, and omitted report of the remaining 7,834,060,20 won. This constitutes "Fraud or other unlawful act" due to an active misconduct that makes it difficult to impose or collect taxes, and it is reasonable to apply 10 years from the exclusion period of imposition of the disposition in this case as prescribed in Article 26-2 (1) 1 of the Framework Act on National Taxes with the exclusion period of imposition of the disposition in this case. Since the plaintiff fails to present specific evidentiary materials about necessary expenses even though the burden

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination as to whether the exclusion period for the imposition of national taxes is expired

(1) The meaning of fraud and other unlawful act

Article 26-2(1) of the Framework Act on National Taxes provides a limitation period for the imposition of national taxes. Article 26-2(1) provides for the limitation period for ten years from the date on which the national tax may be imposed if a taxpayer evades, obtains a refund, or deducts a national tax by deceit or other unlawful act (Article 1). If a taxpayer fails to file a tax base return within the statutory due date of return, it shall be seven years from the date on which the national tax may be assessed (Article 26-2(1)), and if a taxpayer does not fall under subparagraphs 1

"Fraud and other unlawful acts" under Article 26-2 (1) 1 of the Framework Act on National Taxes can be interpreted as the same meaning as "Fraud and other unlawful acts" under Article 9 of the Punishment of Tax Act. "Fraud and other unlawful acts" under Article 9 of the Punishment of Tax Act mean the act of deception and other active acts that make it impossible or considerably difficult to impose and collect taxes as the means of tax evasion, and without accompanying such acts, the fact that a taxpayer fails to report under the tax law or fails to pay taxes by underreporting the tax base does not constitute fraudulent acts (see, e.g., Supreme Court Decision 2005Do370, Mar. 25, 2005).

Therefore, in order to be applicable to the "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 deception and other active acts that make it impossible or considerably difficult to impose and collect tax as such means, and ③ thereby, there should be a causal link between the impossibility of imposing and collecting the tax and the imposition and collection of the tax and the imposition of it.

(2) Facts of recognition

(A) The details of the Plaintiff’s acceptance of the case and the preparation of agreement

① 원고는 1992. 8. 말경 이 사건 종중 등 43인으로부터 국가가 수용하였던 이 사건 종중 등 소유의 토지를 환매권 규정에 따라 위 종중 등이 지급받았던 보상금 상당의 환매대금을 제공하고 소유권을 다시 찿아오는 내용의 이 사건 환매권 관련 소송의 소송대리를 수임하면서, 위 소송의 인지대, 감정비 등을 포함한 소송비용 일체를 원고가 부담하되 위임사무가 성공할 때 일정 비율의 성공보수를 지급받기로 하는 내용으로 위 종중 등 43인과 개별적으로 사건수임약정을 체결하였다.

② According to the agreement concluded between Lee ○ and the Plaintiff that represented the clan of this case, “the amount equivalent to 30% of the value of the economic benefits accrued therefrom, if part of delegated affairs are won, by paying contingent fees, while delegated affairs to the representation of litigation between the clan of this case and the country of the first, second and third instances.”

(3) Meanwhile, 34 persons, including the instant clan, among the clients of the instant lawsuit related to the right of repurchase, failed to prepare for the redemption price equivalent to the compensation to be paid in advance to the State at the time when the limitation period of the instant lawsuit does not expire less than one month, the Plaintiff requested the preparation of the said redemption price, and agreed to pay the Plaintiff 10% of the agreed contingent remuneration, instead of paying it to the Plaintiff.

④ On October 12, 1995, the instant lawsuit related to the instant redemptive right was concluded with the settlement that the instant clans, etc. are to be transferred with the right to claim payment of deposit money of KRW 16,727,159,270 from the State in the Seoul High Court 93 or 24645, the appellate court, for the registration of ownership transfer.

⑤ On November 29, 1995, the Plaintiff deposited KRW 2,475,789,000, which was paid by the clan 4,075,789,000 as the deposit money for which the right to claim for a clan was transferred, with the specific trust funds in the name of the above clan, and the general account opened in the name of ○○, a representative of the said clan at the time.

6) After that, ○○○○ (the representative of the clan of this case from January 20, 191 to February 2, 1997) who was appointed to the representative of the clan of this case as a successor of the Lee○○, upon the Plaintiff’s request, prepared and delivered to the Plaintiff a letter of agreement stating 100 million won in the event the delegated affairs are successful when the delegated affairs are delegated to the representatives of the clan of this case between 42 and the country, and the 1,2, and the 3th court on the case of the registration of ownership transfer between the clan of this case and the country. The copy of the above letter of agreement was kept by the said clan.

7) On October 16, 2002, the instant clan filed a complaint with the Seoul Southern District Office by asserting that the Plaintiff embezzled KRW 127,265,054 of the interest on deposit money in the process of withdrawing the deposited money for which the right to claim the return of the clan was transferred after the lawsuit related to the right to claim the return of the clan was closed. A copy of the written agreement as one of the evidence, which was kept by the said clan, was submitted.

8) Accordingly, even though the Plaintiff received 40% of the total compensation of KRW 7,934,060,50,000 from the clan of this case, etc., the Defendant calculated the comprehensive income tax for KRW 7,834,060,20,000, which is the remainder after deducting KRW 100,000,000, which is the successful remuneration under the above paragraph 6, and imposed the instant disposition.

(B) Details of tax return on the income amount at the time, and Plaintiff's business income return

① On January 20, 1993, with respect to the report on the amount of attorney-at-law's income for the year 1992 between the director of ○○ Regional Tax Office and the director of ○ Local Bar Association, a certain amount was determined by grades according to lawyer's career, and by categories of retained cases, and an agreement was reached to enable ○○ Local Bar Association to report the tax base and tax amount by multiplying the number of cases

② According to the above consultation, the attorneys reported the tax amount according to the reported amount determined by the above consultation regardless of whether to receive the fees and the amount of revenue. In such case, the case name is not submitted except for the corporate case, and the director of ○○ Regional Tax Office decided to treat the reporting person as an individual reporting person who did not report the amount of revenue pursuant to the above consultation in lieu of excluding the interference of tax with respect to the reporting person over the amount of tax imposed by consultation.

③ Around May 31, 1996, when the Plaintiff filed a global income tax return on the portion reverted to year 1995, the Plaintiff reported the amount of business income to KRW 276,591,290, and the amount of income to KRW 122,795,263, and paid KRW 43,757,860 of the global income tax (the amount of income was corrected to KRW 386,798,00 of the global income tax on June 31, 1997, and KRW 62,039,400 of the global income tax was additionally notified).

[Ground of recognition] Evidence Nos. 3, 4, 2-1 to 18 of evidence Nos. 1 to 18 of evidence Nos. 3, 14, and 2 of this court's inquiry and determination of the head of ○○ local bar association,

(3) Determination

According to the above facts, the act of actualizing in relation to the global income tax for the portion reverting to the year 1995 from May 31, 1996 until the time when the global income tax was returned and paid, is deemed to have been omitted or under-reported by the tax authorities on the success fees received from the clan of this case and the amount thereof. Further, there was no evidence to support the fact that the plaintiff made it impossible or significantly difficult for the tax authorities to impose and collect taxes through fraudulent or other active act such as preparing false evidence on which the successful fees were stated 100 million won and submitting it to the tax authorities. Thus, the agreement mentioned in subparagraph (A) (6) of the above paragraph cannot be deemed to have been prepared by this case’s clan of this case’s clan of this case from January 20, 1991 to February 2, 197, at least the time when 00,000, who was the representative of the clan of this case’s clan of this case for the purpose of tax evasion after February 3, 1997.

Therefore, since the exclusion period of imposition of global income tax for the plaintiff 195 shall be five years, the exclusion period of imposition of global income tax for the plaintiff 195 shall be deemed to be ten years, the disposition of this case, which reported the exclusion period of imposition of national tax to be ten years, is unlawful.

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is so decided as per Disposition.

Related Acts and subordinate statutes

Basic Act

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

① 국세는 다음 각호에 규정하는 기간이 만료된 날 후에는 부과할 수 없다. 다만, 조세의 이중과세 방지를 우이하여 체결한 조약(이하 "조세조약"이라 한다)의 규정에 의하여 상호합의절차가 진행중인 경우에는⌌국제조세조정에 관한 법률 ⌏ 제25조에서 정하는 바에 따른다.

1. Where a taxpayer evades a national tax, or receives a refund or deduction by fraudulent or other unlawful means, for ten years from the date on which the national tax is assessable;

(4) The day when national taxes may be levied pursuant to each subparagraph of paragraph (1) shall be prescribed by Presidential Decree.

Enforcement Decree of the Framework Act on National Taxes (amended by Presidential Decree No. 19893, Feb. 28, 2007)

Article 12-3 (Initial Date in Counting National Tax Exclusion Period)

(1) The date when the national taxes may be assessed as referred to in Article 26-2 (4) of the Act shall be the day falling under each of the following subparagraphs:

1. In filing a return on the tax base and amount of a national tax, the following day of the deadline for filing a return or the deadline for filing a return on the tax base and amount of the national tax (hereinafter referred to as "house for one's relocation, etc.") and in such cases,