Since the disposition of this case was conducted after the exclusion period of imposition, it is illegal.

The plaintiff transferred the building of this case after the acquisition of the building of this case, but the defendant did not report the transfer income tax, and the disposition of this case was made, but the disposition of this case was made after the exclusion period of imposition.

Article 26-2 of the Framework Act on National Taxes

2014Gudan5356 Revocation of Disposition of Imposing capital gains tax

United Kingdom A

Head of the District Tax Office

August 27, 2014

September 24, 2014

1. The Defendant’s disposition of imposition of OOO (including additional tax) of capital gains tax for the year 2005 against the Plaintiff on December 1, 2013 shall be revoked.

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

Cheong-gu Office

The same shall apply to the order.

1. Details of the disposition;

A. On February 21, 2003, the Plaintiff acquired OO units of AAAdong AAdong 866 AA apartment OO units (hereinafter “instant apartment”) from OO units, but transferred O units to AA on July 19, 2005, but did not report the transfer income tax accordingly.

B. On December 1, 2013, the Defendant imposed an OO of capital gains tax (including additional tax) on the Plaintiff in 2005 (hereinafter “instant disposition”).

[Ground of recognition] Unsatisfy, Gap evidence 1 and 3

2. Whether the instant disposition is lawful

A. The plaintiff asserts that the defendant's disposition of imposition of capital gains tax of this case was unlawful since seven years have passed since the exclusion period was 7 years, and the defendant asserts that it constitutes a legitimate disposition as it constitutes 10 years of exclusion period.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) If a taxpayer fails to file a tax base return within the statutory due date of return as stated in the relevant Acts and subordinate statutes, the exclusion period of the imposition of national taxes is seven years, and if the taxpayer evades national taxes by fraud or other unlawful means, the exclusion period is ten years. In this case, the initial date of the exclusion period during which the transfer income tax may be imposed is the date following the due date (from May 1 to 31 of the following year of the taxable period), namely, June 1, 2006, and the Defendant issued the instant disposition on December 1, 2013, which was seven years after the due date (from May 31, 2013). Accordingly, the issue of the instant case is whether the Plaintiff’s “in cases of evading national taxes by fraud or other unlawful acts” is “in cases of evading national taxes.”

2) In full view of the aforementioned evidence, Gap evidence, Eul evidence, and Eul evidence Nos. 5 and Eul evidence Nos. 1 through 7’s overall purport of the pleadings, the plaintiff entered into three sales and purchases contracts with different business operators (OOO and OOO members) to transfer the apartment of this case, and the actual registration was transferred to GOA, and the plaintiff received part of the purchase price total OO members in cash. Meanwhile, the defendant sent a explanatory statement to the plaintiff around May 15, 2013, stating that the actual transaction value was revealed during the investigation into the transferee of the apartment of this case, and the plaintiff submitted data to the plaintiff on June 19, 2013.

The term "Fraud and other unlawful acts" under the Framework Act on National Taxes refers to acts which enable the evasion of taxes and which are generally accepted as illegal under the social norms, i.e., deceptive means or other active acts which make it impossible or considerably difficult to impose and collect taxes, and it does not constitute mere failure to report under the tax law or making a false report without accompanying any other acts (see, e.g., Supreme Court Decision 2001Do3797, Feb. 14, 2003). However, in addition to cases where active concealment items appear, such as false recording or underreporting in the account book, repeated use of multiple borrowed accounts, etc., it may be recognized that the imposition and collection of taxes is impossible or considerably difficult (see, e.g., Supreme Court Decision 98Do667, Apr. 9, 199).

However, even though the Plaintiff made a double contract, the Plaintiff did not put the tax authority in error by submitting it to the tax authority, etc. Furthermore, even if the Plaintiff received part of the purchase price in cash or did not promptly comply with the tax authority’s request for submission of materials, it cannot be evaluated that such circumstance interfered with the tax authority’s investigation of taxation requirements and imposition and collection of the transfer income tax within a legitimate exclusion period. Therefore, the exclusion period of imposition of the transfer income tax of this case is seven years since the Plaintiff was found to have evaded national taxes by fraudulent or other unlawful act. Accordingly, the Defendant’s disposition of this case goes beyond the exclusion period and thus is not legitimate.

4. Conclusion

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