[1] Legislative intent of Article 30-4(1) of the former Local Tax Act, meaning of “Fraud and other unlawful act”, and whether any act constitutes “Fraud and other unlawful act” under tax law should be interpreted strictly in accordance with the elements of criminal punishment law (affirmative)

[2] In a case where Gap corporation imposed heavy registration tax, etc. on Gap corporation on the ground that the above transfer registration of ownership constitutes Article 138(1)3 of the former Local Tax Act, the case holding that Gap corporation’s act cannot be deemed as “Fraud or other unlawful act” under Article 30-4(1) of the former Local Tax Act, where Gap corporation’s act is difficult to be deemed as “Fraud or other unlawful act” under Article 30-4(1) of the former Local Tax Act

[1] Article 30-4 (1) of the former Local Tax Act (amended by Act No. 6842 of Dec. 30, 2002; hereinafter "former Local Tax Act") provides that the exclusion period of local tax shall be five years, but it shall be ten years in cases where a taxpayer evades, returns, or is reduced local tax by fraudulent or other unlawful means. The legislative intent of the Act is to extend the exclusion period of local tax to 10 years because it is difficult for the tax authority to discover that there is a tax evasion report, but it does not constitute a fraudulent scheme or other active act that makes it considerably difficult to impose or collect tax impossible, and it does not constitute a mere failure to file a report or a false report under the Tax Act without accompanying any other active act.

In addition, Article 3(1) of the Punishment of Tax Evaders Act, Article 129(1) of the Framework Act on Local Taxes, Article 8(1) and (2) of the Act on the Aggravated Punishment, etc. of Specific Crimes provides that where local taxes are evaded, or local taxes are refunded or deducted by fraud or other unlawful acts, punishment of imprisonment with prison labor for not more than two years, or a fine equivalent to not more than two times the amount of evaded tax, etc. shall be imposed, such as imprisonment with prison labor for not less than five years, or a fine equivalent to not more than two times the amount of evaded tax, etc., and a fine equivalent to not more than five times the amount of evaded tax, etc. shall be imposed. As such, the elements of criminal punishment are the elements of criminal punishment. As such, the strict interpretation of whether certain acts constitute “Fraud or other unlawful acts” under the

[2] Where Company A imposed heavy registration tax, etc. on the following day on the grounds that Company A’s transfer registration of ownership constitutes Article 138(1)3 of the former Local Tax Act (amended by Act No. 6842 of Dec. 30, 2002; hereinafter “former Local Tax Act”), the case holding that it is difficult to conclude that Company A had no intention to move its headquarters at the time of the transfer registration, and the minutes of temporary general shareholders’ meeting, minutes of the board of directors’ meeting, and the articles of incorporation amended pursuant thereto are carried out at the time of the former Non-Contentious Case Litigation Procedure Act (amended by Act No. 8569 of Jul. 27, 2007), and thus, the registration tax, etc. was paid upon the completion of the registration of transfer of ownership with respect to the land acquired on the following day, but the competent administrative agency did not actually move its headquarters, but it is difficult to view Company A as “A’s act of making it difficult to collect additional tax or any other unlawful act.”

[1] Article 30-4 (1) of the former Local Tax Act (amended by Act No. 6842 of Dec. 30, 2002) (see current Article 129 (1) of the Framework Act on Local Taxes), Article 3 (1) of the Punishment of Tax Evaders Act, Article 129 (1) of the Framework Act on Local Taxes, Article 8 (1) and (2) of the Act on the Aggravated Punishment, etc. of Specific Crimes / [2] Article 30-4 (1) (see current Article 129 (1)) of the former Local Tax Act (amended by Act No. 6842 of Dec. 30, 2002), Article 138 (1) 3 (see current Article 28 (2) of the Framework Act on Local Taxes), Article 202 (2) (2) of the former Non-Contentious Case Litigation Procedure Act (amended by Act No. 8569 of Jul. 27, 2007)

[1] Supreme Court Decision 2013Du7667 Decided December 12, 2013 (Gong2014Sang, 196)

National Highway Development Co., Ltd. (Attorney Kim Jong-won et al., Counsel for the defendant-appellant)

Head of Ansan-si (Attorney Lee Dong-gu, Counsel for defendant-appellant)

Seoul High Court Decision 2011Nu9173 decided October 26, 2011

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. The court below acknowledged the facts as stated in its reasoning based on the adopted evidence, and determined that the Plaintiff’s act of completing the registration of transfer of the instant land under his name on August 29, 2002 after the Plaintiff prepared the minutes of temporary general shareholders’ meeting and the minutes of the board of directors’ meeting and revised the minutes of the board of directors’ meeting on August 28, 2002 and transferred the registration of transfer of the instant land under his name on August 29, 200, since it actually maintained the human and physical facilities used in the “Seoul Seocho-gu ( Address 2 omitted)” as the former head office, the real estate registration of the instant land constitutes a heavy taxation requirement under Article 138(1)3 of the former Local Tax Act (amended by Act No. 6842 of Dec. 30, 202; hereinafter “former Local Tax Act”), and that the Defendant’s act of completing the registration of transfer of the provisional shareholders’ meeting and the minutes of the board of directors’ meeting by means of falsity constitutes an unlawful act within the exclusion period of imposition period of imposition of registration tax from 20.

2. However, we cannot agree with the judgment of the court below for the following reasons.

A. Article 30-4(1) of the former Local Tax Act provides that the exclusion period for the imposition of local taxes shall be five years, but it shall be ten years if a taxpayer evades, returns, or reduces local taxes by fraud or other improper means. The legislative intent of the Act is to extend the exclusion period for the imposition of local taxes in question to ten years since it is difficult for the tax authorities to find that there is a tax evasion report, in case where there is such improper act as making it difficult for him to discover the taxation requirements of local taxes, or making it difficult for him/her to find a false fact in order to promptly determine tax relations (see, e.g., Supreme Court Decision 201Du767, Dec. 12, 2013). Accordingly, the "Fraud or other unlawful act" here refers to a deceptive scheme or other active act that makes it impossible or considerably difficult to impose and collect taxes, and it does not constitute a mere failure to file a report or making a false report under the Tax Act without accompanying any other act (see, e.g., Supreme Court Decision 2013Du76767, etc.).

In addition, Article 3(1) of the Punishment of Tax Evaders Act, Article 129(1) of the Framework Act on Local Taxes, Article 8(1) and (2) of the Act on the Aggravated Punishment, etc. of Specific Crimes provides that where local taxes are evaded, or local taxes are refunded or deducted by fraud or other unlawful acts, punishment of imprisonment with prison labor for not more than two years, or a fine equivalent to not more than two times the amount of evaded tax, etc. shall be imposed, such as imprisonment with prison labor for not less than five years, or a fine equivalent to not more than two times the amount of evaded tax, etc., and a fine equivalent to not more than five times the amount of evaded tax, etc. shall be imposed. As such, the elements of criminal punishment are the elements of criminal punishment. As such, the strict interpretation of whether certain acts constitute “Fraud or other unlawful acts” under the

B. According to the reasoning of the lower judgment and the record, the Plaintiff was running a apartment development project in the Dongbag-dong, which was in force before the registration of the relocation of the head office, by installing a temporary building of a model house and having some employees stay on the second floor of the previous head office, and the development project was conducted in the above office until November 2007, which was conducted by the Plaintiff at the time of the relocation of the apartment. Thus, even if the Plaintiff did not reach the actual head office as stated in the lower judgment at the time of the registration of the relocation of the head office, it is difficult to conclude that the Plaintiff had no intention to relocate the head office at the time of the registration of the relocation of the head office. Furthermore, the minutes of the temporary general meeting of shareholders prepared by the Plaintiff, minutes of the board of directors, and the amended articles of association following them are all implemented by the Plaintiff, and it is not always possible for the Plaintiff to take active measures or to make changes in the head office to collect taxes pursuant to Article 202(2) of the former Non-Contentious Case Litigation Procedure Act (amended by Act).

Examining these circumstances in light of the aforementioned legal principles, it is difficult to view that the Plaintiff’s act of preparing the minutes of the extraordinary general shareholders’ meeting and the minutes of the board of directors’ meeting and amending the articles of incorporation and completing the registration of the principal office transfer as “Fraud and other unlawful acts” as stipulated in Article 30-4(1)

Nevertheless, the lower court, solely based on its stated reasoning, concluded that the Plaintiff’s act of registering the relocation of the head office constituted “Fraud or other unlawful act”. In so determining, the lower court erred by misapprehending the legal doctrine on “Fraud or other unlawful act” as provided in Article 30-4(1) of the former Local Tax Act, thereby adversely affecting the conclusion of the judgment. The allegation in the

3. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Shin (Presiding Justice)