The early 2013Gu4982

The exclusion period of imposition is 10 years because the act using a fake sales contract and a confirmation document for real estate transactions falls under "Fraud or other unlawful act."

Any act of submitting a fake sales contract and a confirmation letter of confirmation of the fact of a fake real estate transaction at the time of filing a return after the transfer of land constitutes "Fraud or other unlawful act" as an active act which makes it impossible or considerably difficult to impose taxes. In such cases, the exclusion period for 10 years shall apply.

Article 26-2 of the Framework Act on National Taxes (Period for Excluding Assessment of National Taxes)

2014Guhap37969 Revocation of Disposition of Imposing capital gains tax

○ Kim

○ Head of tax office

October 14, 2015

November 11, 2015

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

Defendant’s transfer income tax amounting to KRW 157,840,030 for the Plaintiff on September 2, 2013 (Additional Tax) of the year 2005.

(including the date of September 12, 2013 of the date of the disposition stated in the complaint's statement of claim) is revoked (including the date of the disposition).

I think)

1. Details of the disposition;

A. On November 8, 2004, the Plaintiff acquired the ownership of 00,000 square meters of 0,000 square meters of ○○○-ri, ○○○, ○○-ri, 4760 square meters of forest (hereinafter “instant land”). Around July 2005, the Plaintiff reported and paid the transfer income tax to the Defendant with the transfer value of the instant land KRW 22,00,000,000, acquisition value of KRW 14,492,880, and the amount of tax payable as KRW 1,767,20 (hereinafter “the first return”).

B. Around November 9, 2005, the Plaintiff filed a claim for correction to the Defendant for refund of KRW 1,767,200 for the transfer value of KRW 166,00,00,000 and acquisition value of KRW 197,105,640, and the Defendant returned KRW 1,767,200 to the Plaintiff on January 9, 2006 (hereinafter “instant claim for correction”). Accordingly, the Defendant refunded KRW 1,767,200 to the Plaintiff on January 206.

C. After January 2013, thisA reported the acquisition value of the instant land to the Defendant as KRW 518,00,000, and the Defendant conducted an investigation into capital gains tax on June 3, 2013 to June 6, 14, 2013. The Defendant deemed that the Plaintiff acquired the instant land in KRW 348,06,00 and transferred KRW 518,00,000 to thisA to the Plaintiff (including additional taxes) on September 2, 2013, the Defendant corrected and notified the Plaintiff of capital gains tax of KRW 157,840,030 (hereinafter “instant disposition”).

D. The Plaintiff appealed and filed an appeal on November 18, 2013, but the Tax Tribunal dismissed the appeal on April 8, 2014.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The instant disposition was made after the lapse of five years from the date of the sales contract, which is the exclusion period for the imposition of national taxes.

2) The Plaintiff did not directly sell the instant land to thisA, but sold to KimB and one other (hereinafter referred to as 'GB' only to 'GB'), and KimB sold it to thisA through a broker. Accordingly, the Plaintiff shall be deemed as the transfer price of KRW 443,00,000 under the sales contract with the Plaintiff or the intermediate buyer KimB. Nevertheless, the Defendant imposed the instant disposition on KimB by deeming the sales price of KRW 518,00,000,000 reverted to the Plaintiff as the Plaintiff’s transfer price, and thus, the instant disposition is unlawful in violation of the substance over form principle.

3) ThisA paid to the Plaintiff via ParkCC an intermediate payment of KRW 200,000,000 to the Plaintiff, but ParkCC paid only KRW 100,000 among them to the Plaintiff, and thereafter avoided the Plaintiff’s contact. The remainder of KRW 100,000,000 is unreasonable, even though the Plaintiff could not recover at present, the Defendant is subject to taxation.

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

1) Determination on the first argument

Article 26-2(1) of the Framework Act on National Taxes provides for the exclusion period of national taxes in principle for five years (Article 26-2(1) of the same Act; however, in cases where a taxpayer evades national taxes, or obtains a refund or deduction by fraudulent or other unlawful means, the exclusion period of national taxes shall be extended to ten years from the date on which the relevant national tax can be imposed (Article 1). In such cases, "Fraud or other unlawful acts" refers to fraudulent or other active acts that make it impossible or considerably difficult to impose and collect taxes impossible, and it does not constitute simply failure to file a report under the tax law or filing a false report without accompanying any other acts (see, e.g., Supreme Court Decision 2013Du7667, Dec. 12, 2013).

According to the evidence Nos. 9-1, 2, 10-1, and 2 of the evidence Nos. 9-1, 2, 10-2, the plaintiff submitted each sales contract on July 6, 2005 under the name of the plaintiff and thisA, which entered the sale price of 22,00,000 won in the first report on the transfer of the land in this case, and the name of the plaintiff and thisA, which entered the sale price of 166,00,000 won in the time of the first report on the transfer of the land in this case. The plaintiff himself recognizes that the sale price of this case is not 22,00,000 won or 16,00,000 won in the name of the plaintiff and thisA. The plaintiff's act in this case constitutes "Fraud or other unlawful act" under the premise that the period of exclusion of imposition is 10 years or significantly difficult. The plaintiff's assertion in this case is without merit.

2) Judgment on the second argument

A) A sales contract on the instant land

On May 18, 2005 with respect to the land of this case, the seller: The plaintiff, the buyer, and one other, the sale price of KRW 443,00,000 (payment upon contract deposit of KRW 50,00,000) and the special contract: The above transfer documents are personal information as required by the purchaser, and the above transfer documents are included in the sales contract (No. 22). Unlike the plaintiff and this, the two sales contracts concerning the land of this case were prepared between the plaintiff and thisA. The sales contract (No. 3, No. 3, No. 12) without the date of preparation of the terms and conditions, the sales contract (No. 12) stating the purchase price of KRW 518,00,00, KRW 50,000, KRW 200, KRW 2000, KRW 7000, KRW 5000, KRW 2005, KRW 2008, KRW 2005, KRW 2005, 2005,2006,7.205.

B) The transferee of the instant land

In light of the contents of each sales contract as alleged by the Plaintiff, the Plaintiff sold the instant land to KimB in KRW 443,00,000, as alleged by the Plaintiff, and there is room to deem that KimB sold the instant land in the middle omission registration method to this effect to this effect. However, considering the following facts and circumstances acknowledged by comprehensively taking into account: (a) evidence Nos. 3 through 5; (b) evidence Nos. 11 through 15, 20 through 23 (including various numbers); (c) witness evidence Nos. 11 through 15, 20 through 23 (including each number); and (d) witness evidence No. Do; (b) witness testimony of this case; and (c) expert yellow E’s written appraisal, etc., the Plaintiff directly sold the instant land to thisA without undergoing KimB; and (c) the amount received from thisA. The Plaintiff’s assertion is without merit.

① ThisA testified clearly to the effect that this Court purchased the instant land directly from the Plaintiff, and paid the sales amount. There was no fact that the sales contract was concluded with KimB, and that KimB was not known.

② The testimony of thisA is reliable in light of the content of each sales contract made between the Plaintiff and thisA. If the Plaintiff sold the instant land to KimB, and if KimB sold the instant land to thisA without being registered, the party who sold the instant land to this case shall be KimB, which is the party who sold the instant land, and the sales contract between the Plaintiff and thisA shall be prepared formally for the implementation of the procedures for ownership transfer registration or the report of transfer income tax. It is sufficient that the Plaintiff and thisA prepare a sales contract (Evidence B-2,00,000 won for real estate transactions (Evidence B-2, 16,00,000 won), which is written between the Plaintiff and thisA, not only the actual timing for payment of the purchase price, but also the actual intent of the purchaser to pay the remainder of the purchase price, but also the actual intention of the purchase and sale contract or the agreement made between the Plaintiff and the Plaintiff to this effect shall not be deemed to have been made.

③ ThisA, on June 9, 2005, issued 200,000 won check from ○○ Bank Account (○○○-○○-○○-○○-○○-○) to pay the down payment through 50,000,000 won check and directly delivered it to the Plaintiff for the intermediate payment around that time. On July 6, 2005, thisA testified that ○ Bank Account issued 268,000,000 won check and directly delivered it to the Plaintiff for the remainder payment. This is consistent with the financial data of thisA (No. 14-1, 2, 3).

④ ThisA testified that the Plaintiff paid the purchase price to the Plaintiff and received a direct receipt from the Plaintiff, and a copy of the receipt (No. 23) was submitted. On June 10, 2005, the 250,000 won of the down payment and the intermediate payment of the land of this case is indicated as follows, and the Plaintiff’s address, name, and telephone number is indicated as 250,000,000 won, and the 268,000,000 won of the remainder of the purchase price of the land of this case is indicated as the Plaintiff’s address and name on July 6, 2005, and the 268,00,000 won of the remainder of the purchase price of this case’s land of this case was written on the Plaintiff’s name, and according to appraiser Yellow EE’s appraisal results, it is recognized that the Plaintiff’s writing on each receipt and the Plaintiff’s entry are the same as the Plaintiff’s writing on each receipt. If the Plaintiff, not KimBA, made the sale of this case’s land.

⑤ The Plaintiff asserted that “at the time of the request for pre-assessment review of the instant land was the contract on May 18, 2005 (referring to the contract between the Plaintiff and KimB) with respect to the instant land, but the contract was reversed.” In light of the above facts, the Plaintiff’s assertion is recognized as based on facts.

3) Judgment on the third argument

A) As seen earlier, thisA paid the Plaintiff the intermediate payment of KRW 200,000,000 directly to the Plaintiff and received a receipt from the Plaintiff. The Plaintiff’s assertion on the premise that thisA paid the intermediate payment to the Plaintiff via ParkCC is without merit.

B) We examine the premise that thisA paid 200,000,000 won to the Plaintiff via ParkCC, and that ParkCC paid only 100,00,000 won among them to the Plaintiff. The Income Tax Act adopts the so-called principle of confirmation of right to taxable income by deeming that income has been realized when a right, which is the cause of such income, has not yet become final and conclusive even if there is no income. However, even if a claim that is the cause of income has occurred, if it is objectively apparent that the claim subject to taxation becomes impossible to recover due to the debtor’s bankruptcy, etc., and it becomes impossible to realize future income, income tax on such economic benefit is lost, and thus, it cannot be imposed on such income as taxable income. In such a case, the Plaintiff’s assertion that the taxpayer did not have any income by asserting and proving such circumstance, but does not have any income to be collected from the part of the intermediate payment (see, e.g., Supreme Court Decision 2001Du15360, Oct. 25, 2002).

3. Conclusion

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