(영문) 대구고등법원 2013.4.26.선고 2012누2703 판결

The judgment of the first instance shall be revoked. The transfer income tax reverted to the Plaintiff on January 6, 2012, which the Defendant rendered to the Plaintiff on January 6, 2012

The imposition of KRW 11,481,620 shall be revoked.

Reasons

1. Details of the disposition;

A. On April 22, 2002, the Plaintiff sold the instant commercial building in KRW 121,400,000 to C (hereinafter referred to as “the instant trade”).

B. As to the instant trade, the Plaintiff filed a transfer income report with the transfer value of KRW 69,00,000 in the name of the Plaintiff.

C. D as a result of a survey on C, confirmed that the instant purchase price was KRW 121,40,000, and notified the Defendant thereof.

D. On January 6, 2012, the Defendant decided and notified the Plaintiff of KRW 11,481,620 of the transfer income tax for the year 2002 with the transfer value of the instant trade KRW 121,40,000 (hereinafter “instant disposition”).

E. On February 7, 2012, the Plaintiff filed an appeal with the Tax Tribunal on February 7, 2012, but on April 2012.

26. was dismissed.

[Reasons for Recognition] Facts without dispute, Gap evidence 1, Eul evidence 5-1, 2, Eul evidence 1, 2-2, Eul evidence 4-1, and the purport of the whole pleadings

2. The plaintiff's assertion

Since C, the purchaser of the commercial building of this case, requested the head of a certified judicial scrivener office without the Plaintiff to report the transfer income tax without the Plaintiff, and the head of the office was unaware of the Plaintiff, prepared a false sales contract, etc. under the Plaintiff’s name and filed a transfer income tax report, and the Plaintiff was unaware of this, the Plaintiff’s act does not constitute a case where the Plaintiff’s act was evaded tax due to “the act of fraud or other unlawful act.” Therefore, the exclusion period of imposition of the transfer income tax of this case is

3. Relevant statutes;

Attached Form 3 is as shown in the "relevant Acts and subordinate statutes".

4. Determination

According to Article 26-2(1)1, 2, and 3 of the former Framework Act on National Taxes (amended by Act No. 8139 of Dec. 30, 2006), national taxes may not be imposed after the expiration of a period of five years from the date on which the relevant national tax is assessable. However, if a taxpayer fails to submit a tax base return by the statutory reporting deadline, national taxes may be imposed for seven years, and if a taxpayer evades national taxes by fraud or other unlawful means, national taxes may be imposed for ten years.

In this context, the term "act of fraud or other wrongful act" refers to a deceptive scheme or other active act that makes it impossible or considerably difficult to impose and collect taxes, and a taxpayer who unders the reported amount the tax base is determined by the tax base, to prepare and submit a false contract in which the taxpayer unders the reported amount the false return is made in order to grant credibility of the amount and to conceal the actual transaction value.

As above, “the fraud or other unlawful act that significantly makes it difficult to impose and collect taxes” constitutes “the fraud or other unlawful act” (see, e.g., Supreme Court Decisions 97Do2429, May 8, 1998; 2004Do2391, Jun. 11, 2004; 201Du1315, Oct. 11, 2012).

Comprehensively taking account of the purport of the entire pleadings as stated in the evidence Nos. 3 and 4-1 through 6 of the evidence Nos. 4, the Plaintiff sold the instant commercial building in KRW 121,40,00 on April 11, 202, while the transfer value was stated in the return documents of capital gains tax as KRW 69,00,000. The transfer value was stated in the return documents of capital gains tax, and the false real estate sales contract stating the purchase amount as KRW 69,00,000, and the transaction amount was stated as KRW 69,000,000, the confirmation of the fact that the Plaintiff and C’s personal seal impression was attached to each of the above real estate sales contract and the certificate of the transaction of real estate.

Meanwhile, in light of the circumstances such as the false report of the transfer income tax on the instant sales, the fact that a certified judicial scrivener has prepared the above false sales contract, etc. in mind is contrary to the empirical rule, and the subject to whom the transfer income tax of this case reverts is the Plaintiff; the delegation is generally made by means of issuing a seal imprint certificate and a certificate of personal seal impression; and the effect of the proxy act performed by delegation is on the Plaintiff himself/herself, it is insufficient to recognize that a certified judicial scrivener prepared a false sales contract, etc. and reported the said transfer income tax, and there is no evidence to acknowledge otherwise.

According to the above facts, since the Plaintiff’s filing of a transfer income tax return by attaching false real estate sales contract, etc. to a false real estate sales contract directly or through C, or through the name and unclaimed winner of the certified judicial scrivener office, the exclusion period for imposition of transfer income tax of this case is 10 years. However, since it is apparent that the instant disposition was made before the exclusion period for imposition expires, the Plaintiff’s assertion is without merit

5. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit, and the judgment of the court of first instance is just with this conclusion, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.