The early appellate court 2014 father2800

A disposition to apply an unfair tax without filing a return deeming that the income amount of the new house construction corporation was omitted by improper means is legitimate.

The disposition imposing the comprehensive income tax by applying the unfair non-return tax, such as changing the name of the owner to the transferee and concealing the fact of new construction and transfer of the building by making the registration of preservation of the building in the name of the transferee, and reporting the transfer income tax only for the transfer of the land is deemed to constitute the manipulation or concealment of

Article 47-2 of the Framework Act on National Taxes:

2015Guhap176 Global Income and Revocation of Disposition

1 A sales contract for land and housing was entered into, and KimB on October 0, 2007, KimB

registration of ownership transfer based on the above sales contract for one parcel of land, and

The registration of preservation of ownership of a house has been completed.

The plaintiff is limited to the land of this case in relation to the transfer of the land of this case and the housing.

The transfer income tax was reported and paid.

(ii) sales of secondary housing;

The Plaintiff shall acquire ownership on October 00, 2007 00,000 00 m2,000 m2,000 m2,000 m2

H. Newly installing a multi-family house (hereinafter referred to as the "second-family house of this case") on the second land of this case

However, on October 0, 2008, before the completion of the approval for use, land and housing in this case 2.

A. On October 0, 2008, LandCC entered into a sales contract for the instant land, and on October 0, 2008, each of the above land was sold.

registration of ownership transfer based on each contract and registration of ownership preservation for the housing of this case 2

was completed.

The plaintiff is limited to the land of this case 2 in relation to the transfer of the land of this case and the housing.

The transfer income tax was reported and paid.

3) On October 0, 2007, the Plaintiff caused the construction of a residential building with the instant land as its place of business.

on October 00, 201, but the business was closed on October 00, 201, and on October 00, 2007, 000,000.

207 after registration of business as a housing rental business with 00 - 00 - 00 - 00 - - 000 -

From 2012 to 2012, the report on the global income tax on the house rental income and the earned income.

In addition to those closed on October 00, 2013, there is no business registration for housing construction and sales business; and

At present, 000 corporation has been working in the company.

B. The Plaintiff’s purchase and sale of housing by his wife KimB

1) The Plaintiff’s wife KimB, the wife of the Plaintiff, 00:00 00 Gu 00 dong, the ownership of which was acquired on October 00, 2009

The land of this case is 000-3 site 000.0 square meters (hereinafter referred to as "the three land of this case"), and the land of this case is 1, 2

In addition, "the land of this case" is purchased and the multi-family house (hereinafter referred to as "multi-family house") is on the land above.

3 Housing is called 3 Housing, and 'Housing' is called 1 and 2 of this Housing.

on December 15, 2010, before approval for use was newly granted, the YellowCC and the land and housing of this case 3 and

On December 23, 2010, YellowCC concluded a sales contract with respect to the land of this case.

The registration of ownership transfer based on a sales contract and the registration of ownership preservation for the houses of this case were completed.

KimB shall only apply to the land of this case 3 with respect to the transfer of the land of this case 3

The transfer income tax was reported and paid.

2) The KimB shall register the business or pay the comprehensive income tax in connection with the sale and purchase of housing, etc.

F.

(c) Correction and notification of global income tax;

The plaintiff and the defendant deemed that the plaintiff and KimB were engaged in the housing construction and sales business on October 00, 2013.

of 0,000,000 global income tax for the year 207, including penalty tax for filing an illegal non-reported return; and

Additional tax of KRW 00,000,000 for global income tax of 2008, including additional tax of KRW 00,000,00 for each rectification and underground

was the global income tax for the year 2007 and the global income tax for the year 2008, and the unfair non-declaration penalty tax;

As to the disposition of imposition on the part of this case, ‘the disposition of this case' is called ‘the disposition of this case'

(d) Implementation of the previous trial procedures;

The Plaintiff, who was dissatisfied with the instant disposition, filed an objection on October 00, 2014, but raised an objection thereto.

There was no room for it, and on October 00, 2014, the Tax Tribunal filed an appeal with the Tax Tribunal, but on October 00, 2014.

It received a decision of dismissal from the Tax Tribunal.

[Reasons for Recognition] Unsatisfy, Gap evidence 1 to 4, Eul evidence 1 to 3 (Dismissal)

Each entry, the purport of the whole pleadings, including branch numbers,

2. The legality of disposition.

A. The plaintiff's assertion

The Plaintiff’s transfer of this case’s 1 and 2 before approval for use becomes worse.

housing construction and sales business from the beginning, not from the beginning;

Since it is not a failure to evade national taxes due to fraud or other unlawful act in relation to transfer, 10 years;

The instant disposition imposing penalty tax on illegal non-declaration by applying the exclusion period is illegal.

B. Relevant statutes

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

C. Determination

1) Whether it constitutes business income

A) Business income subject to income tax is continuously and repeatedly in an independent position for profit-making purposes.

income derived from a business, which is a social activity (Supreme Court, Sept. 9, 2010).

9. See Supreme Court Decision 2010Du8430, etc.) and the Income Tax Act from the transfer of real estate

business income or capital gains shall be the acquisition and holding of the transferor’s real property, the existence of the creation thereof;

Whether the transfer aims at profit in light of the scale, frequency, mode, other party, etc. of the transfer.

and whether there is continuity and repetition of business activities that can be seen as business activities

It shall be determined in accordance with the common sense, and in making such determination, only the transferred real estate concerned shall be subject to the transfer;

(2) If the transfer was made throughout the entire real estate held by the transferor as well as

It is necessary to take into account all the circumstances before and after the flag (Supreme Court Decision 99Du45 delivered on April 24, 2001).

5412 see, e.g., Supreme Court Decision 5412

B) He returned to the instant case, i.e., the following circumstances in the facts of recognition, i.e., the Plaintiff:

1 Before transferring the house, the land for new construction of the instant 2 house was purchased.

c) The housing of this case was transferred to the housing of this case under the condition that one year has not passed since the transfer of the housing of this case

by newly building and transferring the same type of trade in a short period;

(2) In particular, the Plaintiff’s wife KimB as well as the Plaintiff’s wife in the same manner as the Plaintiff.

3 Sale of land and housing. The plaintiff and KimB are married parties, and the marriage period is reasonable.

and the formation of the principal property is made by the plaintiff because the plaintiff has a separate occupation.

Considering the fact that it appears to have existed, the construction of the housing of this case, notwithstanding its name.

It is reasonable to view that the sale and purchase have been jointly conducted by the Plaintiff and KimB, and (3)

Thus, the business activities of the plaintiff and KimB based on the whole transaction activity of the housing of this case.

It should be determined whether or not the plaintiff and KimB have not been registered three times in total for four years.

in the manner of selling the transaction itself, so that the transaction itself has received revenue.

in light of the fact that continuedness and repetition of the instant housing can be recognized, new construction of the instant housing

The continuing and repetition of such selling act to the extent that it can be seen as the business activity for the purpose of profit

It is reasonable to deem that the income accrued from such act was done with the sex, and such income constitutes business income.

Therefore, the prior plaintiff's assertion on a different premise is without merit.

2) Regarding exclusion period of imposition

A) Article 26 of the former Framework Act on National Taxes (amended by Act No. 12848, Dec. 23, 2014)

2 Under the provisions of paragraph (1) 1 and Article 47-2 of the Framework Act on National Taxes and Article 12-2 (1) of the Enforcement Decree of the Framework Act on National Taxes

State of "Fraud or other unlawful acts" as provided in each subparagraph of Article 3(6) of the Punishment of Tax Evaders Act;

In the case of evasion, refund or deduction of taxes, the exclusion period of national tax assessment is extended to 10 years;

In addition, due to the above act, the tax base return under the tax law shall not be filed by the statutory due date of return.

If no tax is levied, an amount equivalent to 40/100 of the calculated tax amount, etc. shall be imposed an additional tax.

In this regard, in Article 3(6) of the Punishment of Tax Evaders Act, "Fraud or other unlawful act" means

If it is impossible to impose and collect taxes due to any act falling under any of the following subparagraphs:

Preparation, etc. of double books in each subparagraph, which refers to active acts significantly difficult;

Preparation and receipt of false records, false evidence or false documents, destruction of books and records;

Concealment of property, fabrication or concealment of income, profits, acts, transactions, and intentional preparation of books;

act or statement, tax invoice, invoice or invoice list, which is not kept or kept;

A company transferred to another company under Article 24 (1) 4 of the Restriction of Special Taxation Act,

Operation of resources management equipment, the operation of electronic tax invoices, and other acts by fraudulent means;

In other words, illegal acts are cited.

Fraud or any other section of the Punishment of Tax Evaders Act in the crime of tax evasion provided for in Article 3 (1) and (6) of the Punishment of Tax Evaders Act

action means an action which makes it possible to evade tax, and which is in violation of social norms;

(2) Any other fraudulent means which make it impossible or considerably difficult to impose or collect taxes;

This refers to other affirmative actions. Therefore, without accompanying other actions under the tax law merely means other affirmative actions.

failure to file a report or filing a false report does not constitute such failure, but the same does not constitute:

In addition to a non-declaration or underreporting of taxable objects and an intentional entry of revenues or sales, etc. in a book;

tax shall be imposed in cases where the circumstances showing the intention of active concealment, such as acts, are added;

It can be recognized that the collection has been made impossible or considerably difficult (Supreme Court).

See, e.g., Supreme Court Decision 2010Do9871 Decided June 14, 2012. In such cases, the intention of active concealment is objectively objectively.

Whether it can be seen as disclosed or not, by falsity, a basic book stating import or sale, etc.;

not only whether the document is prepared, but also whether the method of determining the tax in question is the method of filing the return and imposing the tax.

Whether it is a method, the circumstances leading to the failure to report or false report, and the degree different from the facts, and the statement of false report;

false information, and the method of pretending false information, and documents accompanying false information;

(2) If such document is submitted, all circumstances, such as functions related to the assessment of the tax base;

Comprehensively, determination should be based on whether it can be recognized as unlawful under social norms (see, e.g., Supreme Court Decision 2013Do13829, Feb. 21, 2014).

B) In light of the above provisions and the legal principles, we examine the instant case and examine the grounds for the above recognition.

(1) The taxpayer is entitled to pay global income tax in this case, the following circumstances:

It is a tax return method for which tax liability is finalized by filing a return on tax base and amount of tax;

Unless a tax obligor does not make a lawful report on his/her own, the tax authority shall disseminate the omission;

The plaintiff and KimB are difficult to impose taxes on the new construction and transfer of the housing of this case.

In the case of the plaintiff as well as the failure to file an appeal, the registration of the business for the lease of the house has been made.

only the plaintiff and KimB did not register the housing construction and sales business, and (2) construction

Under the Act, "project owner" means the construction, substantial repair, and change of use of a building, the installation of building equipment, or the construction of a structure.

the Corporation's order or appointment of a field manager for the Corporation's work means "the person who executes the Corporation's work."

Therefore, (see Article 2 (1) 12 of the Building Act) transfers to another person a completed building.

J. Although there is no room to change the name of the owner, the Plaintiff and KimB shall newly construct the instant housing;

In order to not file a global income tax return on the transfer, the instant housing was newly built and substantially executed.

In the completion of construction, the house is sold to another person, but the buyer has the owner.

(3) The plaintiff and KimB have succeeded to the approval of the use of the building and the registration of the preservation of ownership of the building;

A house which acquires the land of this case for the purpose of creating a profit, and newly constructs and transfers the house therein.

The instant housing was transferred only to the land of this case even though the new construction and sale business was carried out.

Transfer Income Tax on the land of this case without any report with respect to the transfer;

(4) The plaintiff is a business operator engaged in the housing construction and sales business with KimB.

In light of the fact that the books required under the tax law are not kept and recorded, the Plaintiff’s act

Unless a return required under the tax law is filed, the comprehensive income tax shall not be levied merely on the failure to file the return;

fraud or other unlawful act that objectively reveals the objective intent of evading such act;

of this case. Accordingly, for global income tax of 2007, 2008, the old State

Since the exclusion period of 10 years under section 26bis(1)(1) of the Framework Act on Taxation shall apply, the exclusion period shall apply;

The plaintiff's assertion on this different premise is without merit.

3) Therefore, the Plaintiff received business income through the transfer of the instant 1 and 2 houses, but is not the Gu.

the defendant's application of the exclusion period of 10 years for the reason that he has evaded national tax by unlawful act.

The instant disposition imposing penalty tax on the Plaintiff is lawful.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.

CHAPTER A

00. Head of tax office

June 11, 2015

July 16, 2015

1. The plaintiff's claim is dismissed.

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

The imposition of additional tax of KRW 0,000,000 on global income tax of KRW 00,000,000 for global income tax of KRW 00,000,000 for global income tax of KRW 2008,00,000 for which the former Cheong-gu branch Defendant had filed on October 0, 2013, shall be revoked.

1. Details of the disposition;

A. The plaintiff's sale of housing

1) On October 00, 2007, the Plaintiff, who acquired ownership on October 0, 2007, newly constructed a multi-family house (hereinafter referred to as “one house of this case”) with the purpose of lease on the land of 00,000,000 m2,000 m2,000 m2 (hereinafter referred to as “the land of this case”) and KimB on October 0, 2007, at the time the construction was completed.