Whether reported by the seal of approval contract constitutes fraud or other unlawful act

The period for exclusion of transfer income tax shall be 10 years since a taxpayer’s act of making it possible to evade tax and constitutes an act of evading the national tax by fraud or other unlawful act.

The exclusion period for national tax assessment under Article 26-2 of the Framework Act on National Taxes

1. The plaintiff's claim is dismissed.

2. Litigation costs shall be borne by the plaintiff.

The Defendant’s disposition of imposition of KRW 13,108,180 for the Plaintiff on May 23, 2006 shall be revoked.

1. Details of the disposition;

The following facts are either not disputed between the parties, or acknowledged in light of the overall purport of the arguments in each of the statements in Gap evidence of 1 to 4, Gap evidence of 5-1 to 7, Eul evidence of 1-1 to 3, Eul evidence of 2-1 and Eul evidence of 2, and there is no counter evidence.

A. On March 12, 1998, the Plaintiff voluntarily transferred KRW 93,80,000,000 in total, KRW 35,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,00,000,00,00,00.

B. After that, ○○○, a purchaser of the right to sell the apartment of this case, sold the apartment of this case on January 27, 2006, and on March 30, 2006, the acquisition value of the right to sell the apartment of this case was KRW 93,80,000, and the head of ○○○ Tax Office notified the Defendant of the defect in the transfer income tax as taxation data.

C. Accordingly, on May 23, 2006, the Defendant investigated the actual transaction value of the apartment of this case transferred by the Plaintiff, and confirmed the transfer value as KRW 93,80,000, and the acquisition value as KRW 58,800,00 (the amount paid by the Plaintiff the down payment and the intermediate payment). Accordingly, the Defendant issued the instant disposition imposing KRW 13,108,180, which was calculated by deducting the amount of the said voluntary payment from the amount of the said voluntary payment. The Plaintiff received the notice from the Defendant on June 15, 2006.

2. Whether the instant disposition is lawful

A. The assertion

(1) The plaintiff alleged that the disposition of this case was made after the lapse of May 31, 2006, which was the period from June 1, 2001 when the transfer income tax on the transfer of the right to sell the apartment of this case may be imposed on the transfer of the right to sell the apartment of this case. Accordingly, the defendant alleged that the disposition of this case is revoked illegally since it was made after the lapse of May 31, 2006, which was the period from June 1, 2001 when the transfer income tax may be imposed on the transfer of the right to sell the apartment of this case. Accordingly, the defendant constitutes a case where the plaintiff evades, refunded, or deducted national taxes by fraudulent or other unlawful act, and thus, the period of exclusion from the imposition of national

(2) The Plaintiff’s disposition of this case without notice of the result of tax investigation is unlawful since it was a disposition that did not provide the Plaintiff with an opportunity to request pre-assessment review.

(b) Related statutes;

Basic Act

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

(1) No national tax may be levied after the period prescribed in the following subparagraphs expires: Provided, That if the mutual agreement procedures are in progress under the provisions of a treaty concluded to prevent double taxation (hereinafter referred to as "tax treaty"), Article 25 of the Adjustment of International Taxes Act shall apply:

1. Where a taxpayer evades a national tax, or receives a refund or deduction by fraudulent or other unlawful means, for ten years from the date on which the national tax is assessable;

2. If the taxpayer fails to file a written tax base return within the legal return term, for seven years from the day on which the national tax is assessable;

3. If it does not fall under subparagraphs 1 and 2 above, for five years from the day on which the national tax is assessable; and

Article 81-10 (Pretax Propriety Review)

(1) A person in receipt of a notification falling under any of the following subparagraphs may request the head of a tax office or the director of a regional tax office concerned to review the legality of the notification (hereafter referred to as "pre-assessment review" in this Article) within 20 days from the date he/she receives the notification: Provided, That he/she may request the Commissioner of the National Tax Service for matters prescribed by Presidential Decree, such as cases where the authoritative interpretation of

1. Written notice of results in tax investigation under Article 81-7; and

2. Other advance notice of taxation as prescribed by the Presidential Decree.

C. Determination

(1) Determination as to the expiration of the exclusion period

However, "Fraud and other unlawful acts" in Article 26-2 (1) 1 of the Framework Act on National Taxes refers to the deception and other active acts that make it impossible to impose and collect taxes or make it considerably difficult, and it does not constitute fraud or other unlawful acts without accompanying any act. (See Supreme Court Decision 2004Do5818, Nov. 12, 2004).

According to the above facts, when filing a report of transfer income tax on the transfer of the right to sell apartment of this case, the plaintiff prepared a false certificate of approval and affixed a confirmation document and a certificate of personal seal impression to the purchaser in accordance with the false contents of the contract when filing a report of transfer income tax under the contract different from the actual sales contract prepared at the time of sale and purchase. Such act of the plaintiff was an act that enables the purchaser to evade taxes, and constitutes an act that the taxpayer evades national taxes by fraud

Therefore, the exclusion period of transfer income tax for the transfer of the right to sell the apartment of this case shall be ten years from the date on which the transfer income tax may be imposed, and the disposition of this case shall not be deemed to have any error of law, which was made within the period from June 1, 2001 to 10 years from the date on which the transfer income tax may be imposed.

(2) Determination as to the allegation that it was unlawful because it did not give an opportunity to claim a pre-assessment review

On the other hand, the pre-assessment review does not directly affect the taxpayer's rights and obligations even if the tax authority made a correction in the case where the taxpayer's assertion is justifiable by notifying the details of the disposition in advance before the tax authority imposes a tax imposition and giving the taxpayer an opportunity to state his opinion or to reflect his opinion. Furthermore, even if the Defendant did not give the Plaintiff an opportunity to request pre-assessment review, if the notice of tax payment containing the contents of the disposition in this case was served on the Plaintiff without giving the opportunity to request pre-assessment review, it remains a procedure to appeal the legality of the disposition through the procedure, such as an objection and a request for a trial against the National Tax Tribunal provided in the relevant Acts and subordinate statutes (the actual Plaintiff was dismissed by seeking the revocation of the disposition in this case to the National Tax Tribunal). In the instant disposition, even if the Defendant did not give the Plaintiff an opportunity to request pre-assessment review, it cannot be said that the disposition in this case is unlawful.

Therefore, the defendant's disposition of this case imposing capital gains tax on the transfer of the apartment of this case is legitimate.

3. Conclusion

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