Seocho-2017- Busan District Court-2187 ( November 06, 2017)

The facts recognized in a final and conclusive judgment on civil and criminal cases, etc. in the tax judgment may constitute a flexible evidence, except in extenuating circumstances.

It is reasonable to determine the factual judgment of the final criminal judgment as it is, inasmuch as there is no evidence to deem that the facts found in the relevant criminal judgment were erroneous, although all criminal facts were led to confession in the relevant criminal case, and it is not the evasion of capital gains tax in the instant lawsuit.

Article 94 of the Income Tax Act: Scope of Transfer Income

2017Guhap52953 Revocation of Disposition of Imposing capital gains tax

○ ○

○ Head of tax office

2018.05.30

2018.06.27

1. The plaintiff's claim is dismissed.

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

The disposition of imposition of capital gains tax of 232,782,725 won against the plaintiff on September 1, 2016 by the defendant of the Gu office on September 1, 2016 shall be revoked.

1. Circumstances of dispositions;

A. On January 14, 2015, the Plaintiff transferred each of the real estate listed in the separate sheet No. 1 (hereinafter referred to as “the instant telecom”) to △△, △△, △△, and on May 31, 2015, reported and paid KRW 3,703,304 for the taxable year 2015, using the transfer value of the instant telecomvis as KRW 1,444,50,000.

B. From May 19, 2016 to July 22, 2016, △△ Regional Tax Office conducted an investigation of capital gains tax, and notified the Plaintiff of the fact that the Plaintiff transferred the instant franchise to KRW 2,050,000,000. Accordingly, on September 1, 2016, the Defendant issued a disposition to correct and notify the Plaintiff of capital gains tax of KRW 232,782,725 for the taxable year 2015 (hereinafter “instant disposition”). The Plaintiff dissatisfied with the request, filed a request with the Commissioner of the National Tax Service on March 31, 2017, but the Commissioner of the National Tax Service dismissed the Plaintiff’s request for re-determination on July 7, 2017.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 3, 8, 9, Eul evidence No. 1 and the purport of the whole pleadings

2. Relevant statutes;

Attached Form 2 shall be as shown in attached Table 2.

3. Whether the instant disposition is lawful

A. The plaintiff's assertion

Since the purchase price of the instant telecom was KRW 1,702,00,000, the instant disposition was unlawful on a different premise.

B. Determination

1) The facts acknowledged in the final and conclusive judgment of a public and criminal case related thereto, unless there are special circumstances, may be the eficial evidence, barring special circumstances. However, in a case where it is deemed difficult to adopt a factual judgment in the final and conclusive judgment of a relevant public and criminal case in light of various evidence submitted in the relevant tax judgment, it may be rejected (see Supreme Court Decision 95Nu398 delivered on October 13, 195).

see also, in the case of a lawsuit seeking revocation of a tax imposition disposition, the facts of taxation requirements

The burden of proof shall be a taxation authority, but there is no direct proof of the facts of taxation requirements.

In the case of indirect facts, etc., the most reasonable explanation in light of the empirical rule is available;

(2) If the existence of a taxation requirement fact can be presumed, such proof must be found.

Therefore, the facts of taxation requirements can be recognized in light of the empirical rule in the specific litigation process.

As long as indirect facts are revealed, the other party to the disposition imposing tax is subject to the empirical rule.

such rule of experience as in the case in question may not be subject to such rule of experience.

Unless it proves that there are special circumstances, the taxation disposition in question satisfies the taxation requirements.

Any unlawful disposition cannot be readily concluded as an unlawful disposition (Supreme Court Decision 2010Du23378 Decided August 17, 2012)

[Reference]

2) The above-mentioned facts, Gap evidence Nos. 1, 9, Eul evidence Nos. 2, 5, 6, and 11, and all statements and arguments

In full view of the following circumstances known in accordance with the purport of the body, the Plaintiff may take account of the following circumstances into account:

The transfer value of the instant telecom in KRW 2,050,000,000, even though it was transferred to 1,444,500,000

That is, the Defendant’s assertion on the other premise seems to have been under-reported. Therefore, the Defendant’s assertion on the other premise is received.

no child shall be any child.

A) According to the evidence No. 11, the Plaintiff, as described in the separate facts of the crime in attached Form 3, as the △△ branch’s ○○ branch of the △△ District Court on February 6, 2017, to the △△△△△, around January 14, 2015, included the instant telecom.

2,050,000 won, even though they were transferred to 2,000,000 won, on May 31, 2015, 1,444,500,00 won

B 'The transfer income tax amount of KRW 152,604,926 was evaded by reporting under the tax base of transfer value.'

The suspension of execution, probation, and the social salaries of △△△△ hours in the month of imprisonment for the violation of the Punishment of Tax Evaders Act.

A judgment ordering 's death' (hereinafter referred to as 'related criminal judgment') was rendered and the above judgment becomes final and conclusive around that time.

It can be seen that the Plaintiff was determined by the relevant criminal judgment. The Plaintiff led to a confession of all criminal facts in the relevant criminal judgment.

C. As to the instant lawsuit, it is alleged that the transfer income tax was not evaded in the instant lawsuit

However, there is no evidence to deem that the facts found in the relevant criminal judgment were erroneous.

It is reasonable to recognize the fact judgment of the final and conclusive criminal judgment as it is.

B) According to the statement in Gap evidence No. 1, the plaintiff and Seoi-gu, Seoul Special Metropolitan City on January 14, 2015, concerning the instant telecom.

In preparing a sales contract, KRW 2,100,000 shall be determined with the purchase price, and at the bottom of the sales contract.

The fact that the phrase "if the transfer tax (tax) shall not be paid under the mutual agreement of both parties" is written.

may be recognized.

C) According to the statement in Eul’s evidence No. 2, △△△, “The sales price of the instant telecom shall be 2,100,000,000”

The Plaintiff’s request to reduce capital gains tax amounting to KRW 1,550,000,00 due to the purchase price

There is a statement that "the package contract was prepared separately".

D) According to the statements in subparagraphs 5 and 6 of subparagraphs B and B, as to the instant telecom between the Plaintiff and Dai-gu △△.

The AA and DB, which introduced a sales contract, stated that the sales price of the franchise of this case is KRW 2.1 billion.

of this title.

C. Sub-decision

Therefore, the case is based on the premise that the Plaintiff transferred the instant telecom to KRW 2,050,000.

Since there is no illegality in the disposition, the plaintiff's above assertion shall not be accepted.

4. Conclusion

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

(c)