Seoul Administrative Court 2009Gudan7663 ( September 30, 2009)

Cho High Court Decision 2008Do4050 ( October 26, 2009)

The right to claim that there is a legitimate reason for exemption from the imposition of penalty tax on lack of knowledge

It is difficult to deem that it is difficult to expect the actual acquisition value due to the fact that the acquisition value is discovered, or that there is a justifiable reason that it is difficult to expect the confirmation of such amount. Therefore, the imposition of additional tax is legitimate.

1. The plaintiff's appeal shall be dismissed.

2. The costs of appeal shall be borne by the plaintiff.

The judgment of the first instance shall be revoked. The imposition of capital gains tax of KRW 48,138,690 against the Plaintiff on September 1, 2008 shall be revoked.

1. The reasons for the judgment of the court of first instance are reasonable, and thus, are cited as the reasons for the judgment under Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act. However, the judgment as to the matters additionally alleged by the plaintiff in the appellate court is added to

2. The Plaintiff was imposed on the ground that an additional tax of KRW 10,627,560, which was included in KRW 48,1381,690 for the transfer income tax of 2006 was imposed on the ground that the Plaintiff filed a report or failed payment. At the time of the Plaintiff’s filing of the transfer income tax of this case, the Plaintiff asked the joint purchaser for the amount of acquisition of the instant real estate at the time of the Plaintiff’s filing of the transfer income tax of this case. However, he heard the answer that the Plaintiff lost a real estate sales contract and did not know the acquisition value, and he was confirmed at the district tax office having jurisdiction over the transfer of the instant real estate to the Plaintiff, etc. as to whether the contract was attached to the report document of transfer income tax of the former owner who transferred the instant real estate to the Plaintiff

However, since additional tax is an administrative sanction, which has the nature of administrative order punishment imposed on the nonperformance of obligation under tax law, in principle, it is possible to impose additional tax if only the requirements for imposing additional tax are met, and it does not require a taxpayer's intentional or negligent act (see, e.g., Supreme Court Decision 93Nu6744, Jun. 8, 1993). Furthermore, the circumstances where a taxpayer cannot be deemed to have been aware of his/her obligation, or where there is a situation where it is unreasonable for him/her to expect the party to perform his/her obligation, i.e., if there is any justifiable reason that there is no possibility of expectation of liability, it shall constitute an exemption from additional tax (see, e.g., Supreme Court Decision 88Nu4218, Apr. 25, 1989). Thus, even in the Plaintiff's assertion itself, the Plaintiff did not know that the acquisition value of the real estate in this case should be returned to the actual market price, and in such cases, it is difficult to expect the Plaintiff's allegation that there was no other justifiable reason.

3. If so, the plaintiff's claim seeking the revocation of the disposition of this case is unlawful, and it is dismissed as it is without merit. The judgment of the court of first instance is justified as it is with merit. It is so decided as per Disposition by the assent of all participating Justices on the bench.