National Tax Service Review and Transfer 2010-0345 (Law No. 10, 2011)

The circumstance that detention is a justifiable reason for an additional tax reduction or exemption cannot be deemed a justifiable reason.

The circumstance of detention in a detention house cannot be deemed justifiable grounds for failure to report capital gains tax and pay capital gains tax, and thus, the imposition of additional tax is lawful.

2011Gudan829, 8829, 201, 201, 201

XX Kim

O Head of tax office

July 15, 2011

August 26, 2011

1. The plaintiff's claim is dismissed.

2. Litigation costs shall be borne by the Plaintiff

The Defendant’s disposition of imposition of KRW 9,967,573 on July 5, 2010 against the Plaintiff of KRW 1,510,581 and KRW 904,083 in the disposition of imposition of capital gains tax for the year 2008 shall be revoked.

1. Details of the disposition;

A. On July 11, 2005, the Plaintiff acquired from the Seoul XX-gu Seoul 0-00 Hael 0000 'the instant real estate' (hereinafter referred to as 'the instant real estate') and transferred the instant real estate to thisA and DoB on December 22, 2008, but did not report and pay the transfer income tax.

B. The Defendant calculated capital gains tax on the transfer of the instant real estate as KRW 10,647,570 (including KRW 1,615,104, additional tax for unfaithful return, KRW 956,949) and notified the transfer thereof on July 5, 2010.

C. On July 29, 2010, the Plaintiff filed an objection, and the Defendant decided to revise the tax base and tax amount as KRW 9,967,573 (including additional tax returns of KRW 1,510,581, additional tax of KRW 904,083) (including additional tax of KRW 1,510,581, additional tax of KRW 904,083) on the ground that the Plaintiff’s expenses paid to a certified judicial scrivener and KRW 1,900,000 are included in the necessary expenses to be deducted from the transfer value in calculating gains from transfer (hereinafter “instant disposition imposing additional tax”).

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 4, Eul evidence Nos. 1 and 2, the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The Plaintiff was detained in a criminal case on January 7, 2009 and could not report and pay the transfer income tax for the year 2008 inevitably due to the relationship that was released on January 6, 2010. This constitutes a ground for extension of the period under Article 6(1) of the Framework Act on National Taxes and Article 2(1) of the Enforcement Decree of the same Act or a case where there are justifiable grounds for non-performance of obligations, and thus, the Plaintiff need not impose the additional tax or the additional tax for unfaithful payment on the Plaintiff pursuant to Article 48(1) of the Framework Act on National Taxes. The imposition of the instant additional tax on a different premise is unlawful.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

According to the above evidence, the Plaintiff was detained in a criminal case around January 7, 2009 and was detained in the Busan Detention Center, etc. until January 6, 2010.

However, it is clear by the language and text of Article 6(1) of the Framework Act on National Taxes and Article 2(1) of the Enforcement Decree of the same Act as to whether a taxpayer should be exempted from additional tax because the taxpayer falls under the grounds for extension of the period under Article 6(1) of the same Act and Article 2(1) of the same Act or where the taxpayer fails to fulfill his/her obligations under the tax law by the statutory deadline, such as the Plaintiff, is confined to a criminal case, and it is not explicitly enumerated in Article 6(1) of the Framework Act on National Taxes and Article 2(1) of the Enforcement Decree of the same Act. However, the issue is whether the case falls under Article 2(1)6 of the Enforcement Decree of the same Act, i.e., "where there is a reason corresponding to subparagraph 1, 2, or 4," but in order to facilitate the exercise of the tax authority and the realization of tax claims. However, the issue is whether a taxpayer is subject to administrative sanctions imposed under the tax law, unless there is a justifiable reason for failure to perform his/her obligations (see, etc.).

However, as the Plaintiff transferred the instant real estate to a person detained in a criminal case on December 22, 2008, there was time to make a preliminary return and payment of capital gains tax even before being detained on January 7, 2009 (the time limit for preliminary return is within two months from the end of the month in which the transfer date belongs, and it is within two months from the end of February 28, 2009). Even if it is detained in a criminal case, it is not impossible to make a report and payment of capital gains tax through his family or tax agent (the period for final return and payment is from May 1, 2009 to May 31, 2009). Considering that it is difficult to view that demanding the performance of the obligation to report and pay capital gains tax within the statutory period for the real estate he transferred to a person detained in a criminal case to be unreasonable in light of the suspect and the reality of the detention system of Korea, the Plaintiff’s circumstance that the Plaintiff is detained cannot be deemed a justifiable ground for the Plaintiff’s failure to perform his obligation to pay taxes, and the Plaintiff’s allegation is not justifiable.

3. Conclusion

Thus, the plaintiff's claim is dismissed as it is without merit.