Cho High-depth2017Gu30 (28 December 2017)

After notification of taxation data, taxation within the exclusion period of imposition should not constitute grounds for exemption from additional tax.

Even if the taxation disposition is delayed after the notification of taxation data, it shall not be deemed a disposition contrary to the principle of trust and good faith or the principle of trust protection.

Article 115 of the Income Tax Act: Additional tax on transfer income tax;

2017Guhap710 Revocation of capital gains tax

IsaA

BB Director of the Tax Office

April 26, 2017

May 19, 2017

1. The Defendant’s disposition of imposing capital gains tax of KRW 49,913,156 on November 1, 2016, the part that exceeds KRW 49,598,735, among the disposition of imposing capital gains tax of KRW 49,913,156, which was imposed by the Plaintiff (Appointed Party).

2. The remaining claims of the Plaintiff (Appointed Party) and this CC and ED are all dismissed.

3. The costs of lawsuit shall be borne by the plaintiff (appointed party).

Cheong-gu Office

The disposition of imposition of additional dues of KRW 27,763,30 among capital gains tax of KRW 97,683,580 on November 1, 2016 against the Plaintiff (Appointed Party; hereinafter referred to as the “Plaintiff”) and KRW 7,448,923 among capital gains tax of KRW 26,264,530, and KRW 7,448,923 among capital gains tax of KRW 26,530, and KRW 75,609,760, which was imposed by the Defendant against the Selection, is revoked.

1. Details of the disposition;

A. On March 8, 2006, the Plaintiff, thisCC, and ED (hereinafter “Plaintiffs”) transferred 5,060 shares of FF to EEEE Co., Ltd., 14,976 shares, 42,578 shares (hereinafter “instant shares”) and reported the transfer income tax to the Defendant, and calculated the transfer value as KRW 10,000 per share and the calculated tax amount as KRW 0 per share.

B. The head of the GGG Tax Office confirmed that the transfer value of the instant shares is not KRW 10,000 per share but KRW 18,034 per share in the course of the tax investigation with respect to the EEE Co., Ltd., and notified the Defendant of the assessment data of capital gains tax on October 7, 2010.

C. Based on the above, the Defendant submitted a false sales contract at the time of the Plaintiffs’ filing of the said transfer income tax, and applying 10 years to the exclusion period of imposition by deeming that it constitutes a case of evading national taxes by fraud or other unlawful means under Article 26-2(1)1 of the Framework Act on National Taxes. On November 1, 2016, the Defendant imposed capital gains tax of KRW 97,683,580 (including additional tax for unfaithful 49,913,156), KRW 26,264,530 (including additional tax for unfaithful 13,378,852) on the Plaintiff, and imposed capital gains tax of KRW 75,609,760 (including additional tax for unfaithful 38,545,084) on the Plaintiff (hereinafter referred to as “instant disposition”).

D. On December 1, 2016, the Plaintiffs requested the Director of the Tax Tribunal to revoke the Defendant’s disposition imposing the said capital gains tax, but was dismissed on February 28, 2017.

Facts that there is no dispute with recognition, Gap evidence 1 through 4, Eul evidence 1 (including each number), and the purport of the whole pleadings.

2. The plaintiff's assertion and judgment

A. The plaintiff's assertion

At the time of the transfer of the instant shares to EEE, the Plaintiffs transferred 5,90 shares of FF to EEE Company, and calculated the transfer value of 10,000 won per share and reported the transfer income tax by calculating the calculated tax amount as 0 won. The FF Director notified the aforementioned taxation data from the head of the GGG Tax Office on October 7, 2010, and imposed capital gains tax on 0GG on July 1, 201.

Defendant also had been notified of the aforementioned taxation data by the head of the GGG Tax Office on October 7, 2010, and had been able to impose capital gains tax on the Plaintiffs on January 1, 201 at the latest, but the instant disposition should be made on November 1, 2016. Accordingly, the Plaintiff was subject to imposition of KRW 27,763,305, thisCC as well as KRW 7,488,923, and DoD as 21,575,932, respectively, and thus, an erroneous payment for unfaithful should be revoked.

B. Relevant statutes

Attached Form 2 is as shown in the relevant statutes.

C. Determination

1) The Plaintiff’s assertion ultimately contradicts the principle of trust and good faith and the principle of trust protection, and thus, the amount of the instant disposition should be reduced to the amount claimed by the Plaintiff.

According to the above evidence, even if 0GGs transferred 5,90 shares of FE Co., Ltd. to EEE Co., Ltd. on March 8, 2006, calculating the transfer value as 10,00 won per share and filing a transfer income tax return; the FG head of the tax office notified 0GGGGs of the above taxation data on October 7, 201; the Defendant notified 0GGGs of the taxation data on October 1, 201; the Defendant issued the taxation data on the Plaintiffs on November 7, 201; the Defendant issued the instant disposition on November 1, 201, 201. However, the application of the principle of trust and good faith to the substantial tax law, which serves as mandatory by the principle of no taxation without law, to the extent that it is deemed necessary to protect each of the above taxation without law by 106,000,000 won; the Defendant’s tax payment based on 106,016, supra.

2) However, according to the aforementioned evidence, even though it is apparent that the instant disposition against the Plaintiff is a simple 3,807 days (from June 1, 2006 to November 1, 2016) due to its unpaid period, the Defendant appears to have calculated the unpaid period by calculating the erroneous payment period as 3,831 days. Therefore, if the amount of lawful additional payment against the Plaintiff is re-calculated, the amount would be 49,598,735 won (4,427,664 x the unpaid amount x 3,807 x the unpaid number of days x 3/10,000).

Therefore, the part that exceeds 49,598,735 won among the disposition of imposition of capital gains tax of KRW 49,913,156 against the Plaintiff on November 1, 2016 is unlawful. Thus, the Defendant’s revocation ex officio is to be revoked.

3. Conclusion

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