Cheongju District Court-2018-Gu Partnership-228 ( November 29, 2018)

Whether the penalty tax for fraudulent underreporting is appropriate;

"Fraud or other unlawful acts" under the Framework Act on National Taxes refers to deceptive schemes or other active acts that make it impossible or considerably difficult to impose and collect taxes, and it does not constitute a mere failure to report under the tax law or making a false report without addition to the circumstances showing the intention of active concealment.

Article 94 of the Transfer Income Tax Act (Scope of Transfer Income)

2018-Nu-1580 Revocation of Disposition, etc. of Imposition of Capital Gains Tax

OO

O Head of tax office

November 29, 2018

.208.14

1, 2019.11

1. The plaintiff's appeal is dismissed.

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

The decision of the first instance court is revoked. The defendant revoked the disposition of imposition of capital gains tax of KRW 282,770,801 (including additional tax of KRW 66,343,739 and additional tax of KRW 15,603,955) remaining after the correction of the amount of capital gains tax of KRW 336,189,603, which was paid to the plaintiff on July 17, 2017 (including additional tax of KRW 66,343,739 and additional tax of KRW 15,603,955) (the plaintiff has reduced the purport of the appeal as above in this court, and

1. Quotation of judgment of the first instance;

The reasons for the judgment of this court are as follows: (a) revise part of the judgment of the court of first instance according to the correction of capital gains tax reduction by the defendant's court, and (b) add the judgment on the part claimed additionally by the plaintiff to this court; (c) accept it as it is in accordance with Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act (the grounds for appeal by the plaintiff is not significantly different from the argument of the court of first instance; and (d) examine the evidence submitted to the court of first instance in light of relevant statutes and legal principles, even if the facts established and the judgment of the court of first instance are examined in accordance with the evidence submitted to the court of first instance, and there is no error as alleged by the plaintiff as the grounds for appeal)

2. Revised parts and additional judgments

A. The modified part

1) The second judgment of the court of first instance, the 78-6-7 plot of land in the 16th through 17th judgment, “78-6 plot of land”;

The "five persons" of the 17th to 18th parallels shall be regarded as "six persons".

2) The amendments to the provisions of Sections 5 through 9 of the Judgment of the first instance to the following:

(g) The Defendant acquired each of the instant land according to the decision of the Tax Tribunal on November 29, 2017, according to the decision of the Tax Tribunal.

On June 29, 1996, the Defendant calculated the conversion acquisition value of KRW 72,692,237, and issued a disposition to correct KRW 336,189,603 of the transfer income tax of this case as KRW 296,756,305 (including additional tax on negligent tax returns of KRW 80,329,243 and KRW 15,603,955). In addition, on August 8, 2019, the Defendant issued a disposition to correct the transfer income tax of this case as KRW 282,70,801 (including additional tax of KRW 66,343,739 and additional tax of KRW 15,603,955) (hereinafter referred to as “additional disposition”).

3) The “Evidence Nos. 18, 19” should be added to the “founded grounds for recognition” of the first instance judgment No. 4, 10 to 11.

B. Additional determination

1) Summary of the Plaintiff’s assertion

The Plaintiff asserts that the additional tax should be revoked on the ground that the additional tax should be revoked on the ground that the additional tax should not be revoked on the ground that there was no unlawful act by the Plaintiff.

2) Determination

A) The legislative purport of the Framework Act on National Taxes stipulating penalty taxes for non-declaration or underreporting due to unlawful acts is to impose heavy sanctions on taxpayers who violate the duty to report the tax base or the amount of tax in an unlawful manner, in cases where it is difficult to detect any fact that serves as the basis for calculating the tax base or the amount of national tax, or where there is any unlawful act such as forging false facts, etc., the tax authorities cannot exercise the right to impose taxes. Therefore, the term “Fraud or other unlawful act” under the Framework Act on National Taxes refers to a deceptive scheme or other active act that makes it impossible or considerably difficult to impose and collect taxes, and it does not constitute merely failure to report under the tax law or making a false report without attaching any circumstance showing the intention of active concealment (see, e.g., Supreme Court Decision 2015Du4158, Apr. 13, 2017).

B) As citing the judgment of the first instance court, the Plaintiff reported the amount calculated on the basis of the price under the instant sales contract as the acquisition price of each of the instant land for the purpose of calculating the transfer income tax following the transfer of this case, and submitted the instant sales contract. Moreover, the Plaintiff submitted a confirmation of the fact-finding (Evidence No. 7) in the name of Gangwon ○ that the Plaintiff was fully paid KRW 380,000,000,000 under the instant sales contract at the time of the said report. However, the Gangwon ○ was present at the first instance court as a witness and did not receive the purchase price, and the Plaintiff testified that there was no knowledge of the process of concluding the instant sales contract, and that there was no way to prepare the said confirmation document. Accordingly, it is reasonable to view that the Plaintiff, at the time of filing the said report on the transfer income tax, committed a fraudulent act that significantly difficult to impose and collect the Defendant’s tax by active means, and thus, the Plaintiff’s aforementioned assertion on

3. Conclusion

Therefore, the plaintiff's claim of this case shall be dismissed as it is without merit. The judgment of the court of first instance is just in conclusion, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.