early 201st century0211 ( December 28, 2011)

Since a joint project cannot be deemed to have the intent to evade tax, the exclusion period of imposition shall be five years.

It is recognized that the registration of joint business operators is made for the purpose of making the tax authority impossible or considerably difficult to impose and collect taxes with the intent of tax evasion. Since the circumstances and evidence are insufficient to recognize it, the exclusion period of imposition is five years, and the initial taxation disposition is unlawful.

2012Guhap1447 Disposition of revocation of imposition of income tax, etc.

XX

Chuncheon Director of the Tax Office and one other

October 5, 2012

November 23, 2012

1. A. Imposition of the global income tax of 000 won on December 1, 2009 on the Plaintiff on December 1, 2009

B. On December 1, 2009, the disposition of imposition of the value-added tax for the first term portion of the year 2003 against the Plaintiff by the head of the tax office on December 1, 2009, KRW 000 of the value-added tax for the second term portion of the year 2003, and KRW 000 of the value-added tax for the first term portion of the year 2004

2. The plaintiff's remaining claims are dismissed.

3. One-half of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

The disposition of imposition of value-added tax for the second period of December 1, 2009 by the head of Chuncheon Tax Office and the head of Chuncheon Tax Office against the plaintiff on December 1, 2009 is revoked. The disposition of imposition of value-added tax for the second period of 2004 against the plaintiff on December 1, 2004, global income tax for the year 2005, global income tax for the year 2007, global income tax for the year 2007, and global income tax for the defendantdo Tax Office.

1. Details of the disposition;

A. On May 20, 2002, the Plaintiff newly constructed and sold a joint business proprietor registration of the Housing Construction and Sales Business (AA, 50: 50) and a joint business proprietor registration of the Seoul Northern-gu, Gangnam-gu, Seoul, and 8-87 and on the third and third lots of land, the apartment house ' XX' (hereinafter referred to as the "multi-family housing of this case").

B. On October 1, 2009, the head of the defendant Chuncheon Tax Office having jurisdiction over the plaintiff's domicile conducted an integrated tax investigation against the plaintiff, and the plaintiff actually reported 50% of the income accrued from the apartment building of this case to a joint business proprietor while operating the new apartment building of this case by himself, and reported and paid 50% of the income accrued from the apartment building of this case to a joint business proprietor, and notified the data to the head of the defendant Dobong Tax Office having jurisdiction over the plaintiff's business place by fraudulent or other unlawful means. Accordingly, on December 1, 2009, the defendants corrected and notified 10 years of exclusion period based on the following income omitted.

[Detailed Statement of Omission of Revenue Amount]

(2) The following details are omitted:

[Contents of Taxation]

(2) The following details are omitted:

[Ground of Recognition] A without dispute, Gap's 5 (including each number), 13 evidence, Eul's 1, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The Plaintiff borrowed KRW 000 for the new construction fund of the instant apartment from the AA. Since the A made a request for security, the Plaintiff registered the land and buildings for the instant apartment project as sharing shares with 1/2 shares in AA and 1/2 shares, and registered YA as joint business operators. Accordingly, since this does not fall under the case where the Plaintiff evaded national taxes due to fraud or other unlawful acts, the exclusion period for imposition of national taxes shall apply to 5 years.

2) The Defendants, without specific data, imposed all of the amounts the Plaintiff received from KimA on the grounds that they were the Plaintiff’s sales revenue amount. This goes against the principle of underlying taxation.

3) Since 502 of the instant collective housing was registered as a transfer of ownership in lieu of the repayment of the obligation for the construction cost to the West, which is a construction business operator, the Plaintiff reported the amount equivalent to the said construction cost as the revenue amount. The Defendant imposed a tax on the amount on the confirmation document prepared by the book-keeping’s wife without any specific grounds.

4) Although the Defendant considered the purchase price of 602 as KRW 000 on the basis of a buyer’s certificate, in light of the fact that more than 602 No. 702 was transacted in KRW 000, the above buyer’s certificate cannot be trusted.

5) The agreed amount paid on September 23, 2002 as of September 23, 2002 due to the death of KimB occurring during the construction of the instant apartment house shall be deducted as necessary expenses.

(b) Related statutes;

▣ 국세기본법(2003. 12. 30. 법률 제7008호로 개정되기 전의 것)

Article 26-2 (Period for Excluding Assessment of National Tax)

(1) National taxes may not be levied after the period as referred to in the following subparagraphs expires: Provided, That where the mutual agreement procedures are in progress under the treaty concluded to prevent double taxation of taxes (hereinafter referred to as “tax treaty”), Article 25 of the Adjustment of International Taxes Act shall apply:

1. Where a taxpayer evades any national tax, or has any national tax refunded or deducted by fraud or other unlawful means, for ten years from the date on which the national tax is assessable;

C. Determination

1) Determination on the Plaintiff’s assertion

A) “Fraud and other unlawful acts” under Article 26-2(1)1 of the Framework Act on National Taxes refer to deceptions and other active acts that make it impossible or considerably difficult to impose and collect taxes, as the same meaning as “Fraud and other unlawful acts” under Article 9 of the Punishment of Tax Evaders Act (see, e.g., Supreme Court Decision 99Do5191, Feb. 8, 2000). Therefore, in order for a taxpayer to be recognized as having committed deception and other unlawful acts with intent to evade tax, thereby making it impossible for the tax authority to discover the taxation requirements or causing the tax authority to make a mistake, etc. by means of deception and other active acts with intent to evade tax, and it does not constitute mere failure to file a tax return under tax law or making a false report.

B) The following facts can be acknowledged in light of Gap evidence Nos. 2, 9, Eul evidence Nos. 7, 8, 16, and 18, and the purport of the entire pleadings in the testimony of the witness A.I.D.

(1) On April 10, 200, the Plaintiff lent KRW 000 of the construction cost required for the instant apartment project to the Plaintiff, the Plaintiff shall immediately pay the said leased principal plus KRW 000,000, to the Plaintiff, immediately after selling the instant apartment, and all tax charges for the instant apartment project are assessed against the Plaintiff. Around that time, the Plaintiff was paid KRW 00 by the AA.

(2) However, according to the demand of AA to provide the said loan to the Plaintiff, the Plaintiff completed the registration of ownership transfer or registration of ownership transfer in the name of AA, among the land in which the instant apartment house is located and the newly-built apartment house, while registering its business on May 20, 202 with the AA as a joint proprietor.

(3) Until June 12, 2003, the Plaintiff repaid the total amount of KRW 000 (00,000,000,000 upon reduction) of the loan and interest on the AA. Even thereafter, the Plaintiff did not change the real estate registration name of the business registration and the instant multi-family housing under the joint name with the AA into the Plaintiff’s sole name. However, the Plaintiff was fully liable for the global income tax, value-added tax, acquisition tax, and registration tax, etc. on the name of the AA.

(4) On April 8, 2010, the head of Gangnam-gu Seoul Northern District Office imposed a penalty of KRW 000 on the Plaintiff, while the Plaintiff trusted 1/2 of the share in the real estate related to the instant apartment house to YA, a penalty surcharge of KRW 100 due to the violation of the Act on the Registration of Real Estate under Actual Titleholder’s Name (hereinafter “Real Estate Real Name Act”). The Plaintiff filed a lawsuit seeking revocation of the disposition of imposition under the Seoul Administrative Court No. 2011Guhap3234. The said lawsuit was concluded by both parties to the lawsuit to reduce the penalty surcharge of KRW 00,00, and the Plaintiff withdraw the lawsuit.

C) In order for the Plaintiff to be recognized as a “Fraud or other unlawful act” in which the Plaintiff made a business registration jointly with the GA and made a report on the income related thereto 50%, it is difficult to recognize that the registration of the joint business place was made for the purpose of making it impossible or considerably difficult for the tax authorities to impose and collect taxes with the intent to evade tax. Moreover, there is insufficient evidence to acknowledge the above facts, and there is no other evidence to recognize the above. Rather, as seen earlier, the Plaintiff registered the real estate as joint ownership for the security of funds borrowed from the GA at the request of the GA, and ② the income tax and value-added tax arising from the joint business registration and the consignment of real estate, etc. were borne by the Plaintiff. Thus, the Defendant is difficult to view that the Plaintiff’s act of tax evasion and the exclusion period under Article 50 of the Enforcement Decree of the Punishment of Tax Evaders Act should be determined as the case where the Plaintiff made a joint business registration under a name more than the case where the Plaintiff made a business registration under the name of its sole owner.

Therefore, the five-year exclusion period of imposition is applied to the instant disposition. Of the instant dispositions, the dispositions Nos. 1, 5, 6, and 7 among the dispositions, are valid since the five-year period of imposition has elapsed from July 1, 2004, which is the date on which the global income tax and each value-added tax may be imposed (the following day of the new deadline), and July 26, 2003, which is the date on which the said global income tax and each value-added tax may be imposed.

2) Determination on the Plaintiff’s assertion as above A. 3 and A. 5

The facts that the exclusion period of imposition applied to the disposition of this case is five years, and the facts that 502 of the apartment of this case was transferred on June 11, 2003 are as seen earlier, and the plaintiff asserted that he paid the agreed amount on the KimB on September 23, 2002. The plaintiff's assertion on this part is related to the disposition of imposition of the period for which the exclusion period of imposition expires, and therefore, it is no longer decided to revoke the disposition of imposition of the part.

3) Judgment on the Plaintiff’s assertion

A) The following facts can be acknowledged in light of the purport of the entire pleadings in each statement Nos. 2 and 3 as to the evidence Nos. 2 and 3.

(1) On May 9, 2003, the Plaintiff and 50 square-type 4 households (201, 301, 401, 501, hereinafter referred to as the “instant 201, 301, 501”) among the instant apartment units, and 37 square-type 5 households (102, 202, 302, 402, and 602; hereinafter referred to as the “instant 102, 202, 302, 402, 602, and 602”) were sold at KRW 00,000,000,000 for sales contract, and the remainder of payment and intermediate payment shall be paid until May 16, 2003, and 1035, respectively (hereinafter referred to as “the remainder of the sales contract”).

(2) After that, in the event that KimA did not pay the down payment and the intermediate payment by the agreed date, on June 13, 2003, the Plaintiff shall pay the full amount of the purchase price to KimA and ① on July 31, 2003. However, if KimA fails to pay the purchase price by the above deadline, the Plaintiff cannot file a civil and criminal objection, even if the Plaintiff takes any measure against KimA, and ② the Plaintiff transfers the ownership of each of the instant loans to KimA as much as the purchase price paid to the KimA; ③ The amount equivalent to the amount of the loan granted to the Plaintiff as a security of each of the instant loans is deducted (if the Plaintiff deducts the total amount of the loan equivalent to the total amount of the purchase price of KRW 00,000, the actual purchase price to be paid by KimA is KRW 00,000) at the time of payment of the purchase price (hereinafter referred to as the “second contract”).

(3) Meanwhile, on June 10, 2003, the Plaintiff set up a collateral of KRW 000 for each of the maximum debt amounts of KRW 201, 301, 401, and 501 with respect to the loans of KRW 100,000 for each of the instant loans of KRW 102, 202, 302, 402, and 602 from the O Marine Insurance Co., Ltd. and received each of the loans of KRW 000 for each of the maximum debt amounts of KRW 100 for loans of KRW 00 (00 + KRW 400 + KRW 005).

(4) After that, KimA paid to the Plaintiff the purchase price in this case, KRW 00 on August 14, 2003, KRW 00 on August 2003, KRW 000 on August 2003, KRW 00 on August 29, 2003, KRW 00 on September 3, 2003, KRW 000 on September 30, 2003, and KRW 000 on October 30, 2003, respectively, and the Plaintiff again purchased from the KimA on August 11, 2003, KRW 501 on August 28, 200, KRW 500 on August 201, 203, the registration of ownership transfer was completed on August 28, 200, and the Plaintiff purchased from the KimA on August 301, 203, and again purchased the ownership transfer from it on August 31, 2003.

(5) Since then, KimA did not pay the remainder of the sales price, on November 13, 2003, the KimA and the Plaintiff concluded a sales contract again (hereinafter “the third contract”). The details are as follows.

- The subject matter of sale is 50 square meters, 201, 401, 37 square meters, 102, 202, 302, 402, and 602 Ba (excluding 501, 301, 301, the subject matter of sale of this case, the subject matter of which was 50 square meters.)

- The remaining payment date of the purchase and sale shall be until January 15, 2004, and KimA shall pay each balance to the Plaintiff up to December 20, 2003, up to December 30, 2003, up to December 30, 200, and up to January 15, 2004, and shall be borne by KimA for the interest on the loan extended with the subject matter of the sale as security.

- Where the KimA fails to pay in full the purchase price by the agreed deadline, the KimA may not raise a civil or criminal objection even if the plaintiff does any act (such as re-sale).

- If the balance is not paid in full by January 15, 2004, all contracts so far shall be null and void, and the down payment and intermediate payment received by the plaintiff shall not be refunded at the same time, and KimA shall pay a separate penalty to the plaintiff.

(6) The KimA paid to the Plaintiff the instant purchase price of KRW 00 on Nov. 14, 2003, KRW 000 on Nov. 21, 2003, and KRW 000 on Dec. 19, 2003, two promissory notes with a total face value of KRW 000 on Dec. 19, 200 (it shall be normally settled on Mar. 20, 2004 and March 25, 2004), two promissory notes with a payment date (it shall be settled on Jan. 28, 2004; KRW 000 on Jan. 29, 2004). The Plaintiff completed the registration of ownership transfer from KimB, and the Plaintiff completed the registration of ownership transfer from Kim Dong on Jan. 12, 2004.

(7) After that, as KimA did not pay in full, the Plaintiff entered into a new sales contract with KimA on June 8, 2004 (hereinafter referred to as the "final contract of this case"), and the contents of the contract are as follows.

- The subject matter of sale is 50 square meters-type 201, 701, 37 square meters-type 102, 202, 302, 402, and 602 lending (except for the lending of No. 401, the ownership registration of which has been completed to a pre-seller, and adding a new 701 lending) (No. 701 lending as security for KRW 000,000 to the maximum debt amount of KRW 00,000 in the name of the Mapo Saemaul Depository).

- The purchase price of KRW 00,00, whichever is the down payment of KRW 000,000,000, on the date of the contract, and the remaining amount of KRW 000,000, respectively, until September 10

- The financial obligations and interest on which the subject matter of the sale is secured shall be borne by KimA from the date of this Agreement, and if KimA fails to pay interest, etc., the loss shall be compensated to the Plaintiff.

- The KimA shall pay 3% interest rate per month for the portion that the KimA could not pay in full by September 10, 2004, which is the due date for the agreement.

- If the KimA fails to comply with the above terms and conditions, the Plaintiff may rescind the contract without the peremptory notice, and if the contract is rescinded, the KimA may not demand the return of the portion performed.

- All contracts and arrangements entered into between the Plaintiff and the KimA during this Agreement shall become void.

(8) On June 9, 2004, KimA paid 000 won the down payment to the Plaintiff according to the instant final contract. On October 20, 2004, the Plaintiff made the registration of ownership transfer on November 24, 2004 to SongD, which purchased the instant 201 loan from KimA, again.

(9) On September 10, 2004, KimA did not pay the remainder of KRW 000,000, which is the remainder payment date. On September 23, 2004, the Plaintiff sent to KimA a notice to the effect that the contract of this case is rescinded on the ground of his failure to pay the payment of KimA, and on November 22, 2004, the notice was served to KimA.

(10) On March 7, 2005, KimA filed a lawsuit against the plaintiff as Seoul Northern District Court 2005Kahap1739 on the claim for ownership transfer registration, etc. In response, KimA appealed as Seoul High Court 2005Na58924, the above court concluded the final contract of this case, and the plaintiff and KimA agreed on November 3, 2006 that the part performed under the above 1, 2, and 3 contracts shall lose the validity of the above 1, 2, and 3 contracts under the premise that the return is not demanded, and that the above part performed under the above 1, 2, and 3 contracts would lose the effect of the above 1, 3 contracts. The above final contract of this case was lawfully rescinded by the plaintiff's declaration of intention on the ground of the non-performance of the obligation of KimA, and KimA rejected the claim for restitution of the part performed, and thus, the plaintiff could be deemed to have been unfairly dismissed by the court's decision of 2000 won damages compensation for delay.

(11) Meanwhile, based on the factual basis acknowledged in the judgment of this case, the Defendant imposed tax on the Plaintiff by regarding the amount of money received by the Plaintiff from KimA as the total sum of the amount of debt succeeded by the Plaintiff from the Plaintiff and the amount of promissory notes, the payment date of which has not yet arrived, and the amount remaining after deducting part of the amount that the Plaintiff received from KimA as the loan interest interest, and the amount of damages returned by the Plaintiff to KimA, as the purchase price of Ba, 201, 401, 501

B) According to the above facts, the defendant imposed only the amount that the plaintiff received as the purchase price of part of the apartment house of this case among the price that the plaintiff received from KimA according to the judgment of this case which became final and conclusive as the sale price of the apartment of this case as the plaintiff's sales price. Thus, unless the plaintiff proves the actual sale price of the apartment of this case by each unit of the apartment of this case, it is difficult to view that the disposition of

4) Judgment on the Plaintiff’s assertion

However, there is no evidence to acknowledge that the Plaintiff sold No. 602 of the apartment housing of this case (hereinafter referred to as “No. 602”) to KRW 00,00 as the details of the Plaintiff’s report. Rather, according to each of the evidence No. 12, 13, and 14, the Plaintiff prepared a confirmation letter that the Plaintiff purchased the Plaintiff’s 602 lending from the Plaintiff around December 2006 at KRW 00 (including a loan of KRW 00,000), and attached a copy of the receipt and contract. ② The attached receipt stated that the Plaintiff paid the remainder of KRW 600 (contract deposit, KRW 00, KRW 00, KRW 00, KRW 600, KRW 00, KRW 600, KRW 00, KRW 600, KRW 00, KRW 600, KRW 600, the remainder of the sales contract of this case, and the Plaintiff’s remainder of KRW 60,000, KRW 600.

3. Conclusion

Therefore, the plaintiff's claim is justified within the scope of the above recognition, and the remaining claims are dismissed as it is without merit. It is so decided as per Disposition.