Early High Court Decision 2008 Jeon 3681 ( December 24, 2008)

The act of preparing and reporting a false double contract constitutes fraud or other illegal means.

In a tax in which the tax base is determined on the basis of the reported value by a taxpayer, the taxpayer’s filing of a false return shall be reliable and the taxpayer shall prepare and submit a false contract in which the sale price is less than the actual transaction price in order to conceal the real transaction price. It constitutes a positive deception and a fraudulent or other unlawful act.

The contents of the decision shall be the same as attached.

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposition of capital gains tax of KRW 3,775,280 against the Plaintiff on August 1, 2008 shall be revoked.

1. Circumstances of the disposition;

A. On December 15, 2001, the Plaintiff sold 1-2, 106 and 401 (hereinafter “the instant real estate”). On January 19, 2002, the Plaintiff reported the transfer income tax to the Defendant with the transfer value of KRW 65,00,000, by modifying the transfer value of KRW 104,000 on May 30, 2002.

B. On November 7, 2006, 2006, ○○○ sold the instant real estate to Kim Jong-dong and Yellow ○○○○○○○○, and the transfer value was KRW 220,000,000, and the acquisition value was KRW 125,000, and the Defendant reported the transfer income tax to the Defendant.

C. On August 1, 2008, the Defendant issued a disposition imposing capital gains tax of KRW 3,775,280 on KRW 21,00,000, the difference between the acquisition value reported by the Plaintiff and KRW 104,000,000, the transfer value reported by the Plaintiff and KRW 104,000 (hereinafter “instant disposition”).

D. The Plaintiff filed an appeal with the Tax Tribunal on November 3, 2008 on the instant disposition, but the Tax Tribunal rendered a decision to dismiss the Plaintiff’s claim on December 24, 2008.

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, 4, Eul evidence 1 and 4 (including each natural disaster, if any) and the purport of the whole pleadings

2. The assertion and judgment

A. The plaintiff's principal

1) The instant disposition was made after the lapse of five years, the exclusion period of the imposition right, and is unlawful.

2) At the time, it is unreasonable for the Defendant to take the instant disposition, even though it was a general practice to set up a side contract with the amount lower than the actual transaction value.

(b) Related statutes;

It is the same as the entry in the attached statutes.

C. Determination

1) Whether the imposition disposition of this case was taken within the exclusion period of the imposition right

Article 26-2(1)1 of the Framework Act on National Taxes provides that the limitation period for the right to impose national taxes shall be ten years from the date on which the national tax can be imposed if the taxpayer evades a tax as a "Fraud or other unlawful act." In this context, the term "Fraud or other unlawful act" refers to a deceptive scheme or other active act that makes it considerably difficult or considerably difficult to impose or collect taxes, and it does not constitute a mere failure to file a tax return under the tax law or failure to pay taxes without accompanying such an act (see Supreme Court Decision 97Do2429, May 8, 1998). However, it is a "Fraud or other unlawful act that significantly difficult to impose or collect taxes by actively deceptive act" (see Supreme Court Decision 201Do2429, Jun. 14, 2004).

However, in full view of the facts without any dispute, the entries in Eul's five to eight, and 10 certificates (including each branch number, if there is a branch number), and the purport of the whole pleadings, the plaintiff acquired and owned the real estate of this case on September 11, 1996 and sold to 125,00,000 won to ○○○ on December 15, 2001. However, upon reporting the transfer income tax on January 19, 200 on January 19, 202, the plaintiff reported the sale price of this case to 65,00,000 won, along with a double selling contract with the acquisition price of KRW 92,18,00,00, tax base -27,18,000 won, -27,188,000 won, and thereafter, the plaintiff reported the transfer price of this case to ○○ on May 30, 2002.

Therefore, in the transfer income tax that is determined on the basis of the tax base reported by the taxpayer, the plaintiff prepared and submitted a false double selling contract in which the amount of transfer is less than the amount of transfer in order to grant credibility while underreporting the amount of transfer report and to conceal the actual transaction amount. As such, the plaintiff's act constitutes "Fraud or other unlawful act which significantly makes it difficult to collect taxes as a positive deceptive act."

Therefore, since the plaintiff is judged to have evaded national taxes due to "Fraud or other unlawful acts", the exclusion period of the right to impose the transfer income tax of this case constitutes ten years. The disposition of this case was made before the exclusion period of the right to impose the transfer income tax of this case expires

(ii)the determination on the recommendation that the act of the plaintiff is legitimate in accordance with the prevailing practice;

As alleged by the Plaintiff, it was a common practice to prepare a family contract with the amount lower than the actual transaction price at the time. However, even if the Plaintiff’s act does not justify the Plaintiff’s act of filing a false double selling contract with the intent of reporting the transfer value lower than the actual transaction price by reporting the transfer value to the acquisition value or acquisition value as the actual transaction price and not paying the transfer income tax, by submitting it.

3) Sub-decisions

Therefore, this case is legal.

3. Conclusion

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