Busan High Court 2014 Busan High Court 0147

It is difficult to see that it is substantially transferred or acceptable and it is in violation of substance over form principle.

Since it is recognized that the actual transfer of land was known or it was accepted, it is difficult to view that the exclusion period of imposition is 10 years or more, and it is against the substance over form principle.

The exclusion period for national tax assessment under Article 26 of the Framework Act on National Taxes

2014Guhap421 Revocation of Disposition of Imposing capital gains tax

O KimO

Head of Jeju Tax Office

December 17, 2014

on October 02, 2015

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The disposition that the Defendant imposed on the Plaintiff on May 2, 2013 on the Plaintiff at KRW 000, KRW 000, KRW 000, and KRW 000,000, respectively, shall be revoked.

1. Details of the disposition;

(a) First sale contract;

1) On February 10, 2002, the Plaintiff purchased 000 won of the instant land from ○○○○○-○○○○○○○○-○○○○○○○ (hereinafter “instant land”) from ○○○○○○ on behalf of ○○○○ on behalf of ○○○○ on behalf of ○○○ on behalf of ○○ on August 10, 2010, and entered into a contract to sell and purchase the instant land on KRW 000 (the down payment of KRW 00 on August 10, 200, the remainder of KRW 00 on August 27, 2002), and received KRW 00 from ○○○ on the same day.

2) On August 27, 2002, the Plaintiff received 000 won of the purchase and sale balance, and signed and sealed each of the receipts stating “00 won of the price, August 27, 2002,” and “00 won of the price, August 27, 2002,” respectively.

(b) Second sale contract;

1) On August 17, 2002, ○○○ and the instant land, as the Plaintiff’s agent, entered into a sales contract with the sales price of KRW 000,000 (the down payment of KRW 000 on August 17, 2002, the intermediate payment of KRW 000 on August 27, 2002, and the balance of KRW 00 on August 27, 2002, and received KRW 00 from ○○ on the same day.

2) On August 27, 2002, ○○○ prepared a written confirmation of the fact of transaction that the Plaintiff’s agent paid KRW 000 to ○○○○ on the same day, and that the said day’s “sale price is KRW 000,000, down payment is KRW 000, August 10, 2002, and that the balance is KRW 000,000, August 27, 2002.”

(c) Reporting and payment of capital gains tax;

On October 30, 2002, the Plaintiff filed a transfer income tax report to the Defendant via ○○○, a tax agent, along with a sales contract with the sales price of KRW 000 in relation to the instant land, and paid KRW 00 of the transfer income tax to the Defendant.

D. Disposition of this case

1) When ○○○○ intended to expropriate the instant land on or around 2013, he reported the acquisition price of KRW 000 upon filing a transfer income return. On May 2, 2010, the Defendant decided that the Plaintiff intentionally omitted capital gains and decided that the sale price was KRW 000, including additional tax, was 00,000, and notified the correction of KRW 00 including additional tax as capital gains tax (hereinafter “instant disposition”).

2) The Plaintiff appealed and filed an appeal on November 25, 2013, but the Tax Tribunal filed a claim.

The decision of dismissal was made.

[Ground of recognition] Facts without dispute, Gap evidence 1 through 4, 6 through 9, 11, 12, 21, Eul evidence 2 and 3 (including provisional number; hereinafter the same shall apply), the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The parties' assertion

1) The plaintiff's assertion

The disposition of correction and imposition of capital gains tax against the plaintiff is unlawful even though it can be imposed for five years from the date on which national taxes can be imposed because it falls under Article 26-2 (1) 3 of the Framework Act on National Taxes, for which five years have passed since the exclusion period is illegal.

In addition, the Plaintiff transferred the instant land at KRW 000, and it was not known that ○○○ and ○○○ concluded a secondary sales contract with KRW 000 with ○○○○ without being delegated by the Plaintiff, and thus, the Plaintiff was not aware of the fact that ○○ and ○○○ concluded the secondary sales contract with ○○○○○○ without being delegated by the Plaintiff, thereby recognizing 00 won, the difference

2) The defendant's assertion

Since the Plaintiff may recognize the fact that it knew or accepted the second sale contract, the Plaintiff’s under-reported declaration of capital gains tax base constitutes a case of evading taxes as a “Fraud or other unlawful act” pursuant to Article 26-2(1)1 of the Framework Act on National Taxes, and thus, ten years have passed, which is the exclusion period of the right to impose capital gains tax. Thus, the instant disposition is lawful.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

1) Whether the Plaintiff was aware of the second sale contract

First of all, according to the statement of evidence No. 15 as to whether the Plaintiff knew of the sale contract, the Plaintiff’s remaining 00 won received from ○○○○○○○○○○○○○○○○○○○○, and paid 00 won out of the outstanding 00 won to the Plaintiff. ○○○○○○○○○○○○ was aware of the fact that the remaining 00 won out of the total 00 won received from ○○○○○○○○○○○○, but the following circumstances are acknowledged based on the evidence adopted earlier, the statement of evidence No. 5 through No. 14, and the purport of the entire argument, namely, the Plaintiff’s seal impression affixed on the receipt of the remainder of the sales contract, and affixed his seal imprint at the time of the sale contract to the Plaintiff’s ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○’s sales contract.

2) Determination as to whether the exclusion period expires

According to Article 26-2(1)1, 2, and 3 of the former Framework Act on National Taxes (amended by Act No. 8139 of Dec. 30, 2006), national taxes may not be imposed after the expiration of a period of five years from the date on which the relevant national tax is assessable. However, if a taxpayer fails to file a tax base return by the statutory due deadline for return, national taxes may be imposed for seven years, and if a taxpayer evades national taxes by fraud or other unlawful means, national taxes may be imposed for ten years. Here, the term “Fraud or other unlawful acts” refers to a deceptive scheme or other unlawful act that makes it impossible or difficult to impose and collect taxes impossible or considerably difficult. In determining the tax base on taxes based on the reported value, a taxpayer’s filing of a false return by underreporting the amount of credibility, and preparing and submitting a false contract in which the sales price is written in order to conceal the actual transaction price constitutes “any other fraudulent act significantly difficult to impose and collect taxes” (see, e.g., Supreme Court Decision 2012Du151512.

According to the above facts, since the plaintiff knew of or allowed the fact that he actually transferred the land of this case to ○○○○, the plaintiff's report of capital gains tax by means of preparing a sales contract stating the sales price under-paid through ○○○, etc. constitutes "Fraud or other unlawful act" and thus, the exclusion period for exclusion from imposition of capital gains tax of this case is ten years, and thus, the disposition of this case is not subject to exclusion period. Therefore, this part of the plaintiff's assertion is without merit.

3) Determination as to whether the substance over form principle is violated

As seen earlier, the Plaintiff’s transfer of the instant land at least KRW 000 to ○○○, or the fact that the Plaintiff, in substance, allowed the transfer value at least is the same as seen earlier, the instant disposition imposed by the Defendant with the transfer value at KRW 000 is difficult to be deemed to violate the substance over form principle. Therefore, the Plaintiff’s

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so ordered as per Disposition.

partnership.