The disposition of this case on the transfer of land in this case shall be null and void after the expiration of the exclusion period of imposition.

The plaintiff's act of submitting a explanatory statement stating false facts to the defendant cannot be viewed as "Fraud or other unlawful act in imposing transfer income tax on the land of this case which the plaintiff acquired originally."

The exclusion period of imposition of national taxes under Article 26-2 of the Framework Act on National Taxes

2017Gudan10657 Revocation of Disposition of Imposing capital gains tax

Park AA

Head of Nowon Tax Office

December 20, 2017

7 February 2018

1. Ascertainment that the Defendant’s imposition of KRW 00,00,000 (including additional tax) for the transfer income tax of KRW 2000,000 on the Plaintiff for the year 200 X.

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

Cheong-gu Office

The disposition of KRW 00,00,00 (including additional tax) for the transfer income tax of KRW 000,000,000 (including additional tax) belonging to the Plaintiff for the year 200 X.

1. Details of the disposition;

A. In this B’s name, OO-dong 000-0 square meters and 000-00 square meters in the land transaction permission zone, the land transaction permission zone was acquired, but the same 000-0 square meters in X. 2000. X. 2000-0 square meters and 000 square meters in the same 00-0 square meters in the same 000-0 square meters in X. 2000. Around that time, the land was transferred to the Defendant of the same 00-0 square meters and 000 square meters in the same 00-0 square meters in X. 2000. X. 200 X. 00-0 square meters in the same 00 square meters and 000-00 square meters in the same 00-00 square meters in the same 000 square meters (hereinafter “the instant land”).

B. The Plaintiff recognized the fact that the instant land was trusted to the Defendant during the period of 20 XX. X., and reported and paid the transfer income tax on the premise that the instant land was the land for business use.

C. However, the Defendant decided and notified the Plaintiff of KRW 00,00,000 (including additional tax) for the transfer income tax belonging to X. X. 200, X. X. 200, as a result of the tax investigation of transfer income tax on the Plaintiff following the transfer of the instant land from X. 20 XX. X. 200 to X. 200.

D. The Plaintiff filed an appeal against the instant disposition with the Tax Tribunal, however, the Tax Tribunal rendered a decision to dismiss the Plaintiff’s appeal in XX. 20 XX.

[Reasons for Recognition] Nos. 1, 2, and 32 Nos. 1 to 8 (including paper numbers) and the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

1) The primary claim

The exclusion period for imposition of capital gains tax on the transfer of the land of this case is from May 31, 200 to May 31, 2000, 7 years from the day following the expiration date of the filing period of tax base return. Therefore, the disposition of this case shall be deemed null and void after the exclusion period for imposition expires.

2) Preliminary Claim

Since the Plaintiff acquired the instant land, it is deemed that the instant land was the land for business, and thus, the instant land ought to be deemed the land for business. Therefore, the instant disposition should be revoked as it is unlawful on a different premise.

B. Determination

1) Judgment on the main claim

A) According to Article 26-2(1) of the Framework Act on National Taxes, if a taxpayer fails to file a tax base return by the statutory due date of return, a national tax may not be imposed after seven years from the date on which the national tax is assessable, but if a taxpayer evades national tax, obtains a refund or deduction due to “Fraud or other unlawful acts”, the national tax may be imposed until ten years have passed from the date on which the national tax is assessable. The legislative purport of Article 26-2(1) of the Framework Act on National Taxes is, in principle, to ensure prompt determination of tax law relations, where the exclusion period of the right to impose national tax is short, but it is difficult for the tax authority to detect the taxation requirement of the national tax and it is difficult to expect the tax authority to exercise the right to impose national tax as it is difficult to find that there is a tax evasion report, and thus, the exclusion period of imposition on the relevant national tax is extended to 10 years. Therefore, “Fraud or other unlawful acts” under Article 26-2(1)1 of the Framework Act on National Taxes, which is not accompanied by a fraudulent or other unlawful act under the Punishment Act.

B) In full view of the purport of Gap evidence Nos. 4 and 5 and the entire pleadings, the defendant conducted an investigation into the source of funds to the plaintiff from 200 XX. X. from 200 X to 20 XX. The plaintiff, unlike facts, submitted to the defendant a explanatory statement stating that "00 00 m20 m200 m200 m200 m200 m200 m200 m200 m200 m200 m2 with the defendant at the time, jointly acquired the land with this Eul, and "X. X.'s m200 m20 m20 m20 m20 m200 m20 m200 m20 m200 m200 m20 m200 m20 m200 m20 m20 m200 m200 m20.

Ultimately, pursuant to Article 26-2(1)2 of the Framework Act on National Taxes, the instant disposition should be made within 7 years from June 1, 200, to May 31, 200, on which the Plaintiff is entitled to impose capital gains tax, by failing to file a tax base return by May 31, 200, pursuant to Article 26-2(1)2 of the Framework Act on National Taxes, but the disposition was made within 7 years from June 1, 200 to May 31, 200

Therefore, the plaintiff's primary claim is justified.

2) Determination on the conjunctive claim

If the plaintiff's main claim is reasonable, it shall not be judged separately for the conjunctive claim.

C. Sub-committee

The instant disposition is null and void.

3. Conclusion

If so, the plaintiff's primary claim shall be accepted for the reasons and it is so decided as per Disposition.