Article 26-2 (1) 1 of the former Framework Act on National Taxes shall apply to the exclusion period for ten years.

"Unlawful act" includes not only the unlawful act of the taxpayer but also the unlawful act of the taxpayer, such as the agent or performance assistant, who obtains the benefit of expanding the area of the act by entrusting the person liable for duty payment with the management of the relevant work.

Article 26-2 of the National Tax Basic Act

Daejeon District Court-2016-Gu Partnership-101425 (No. 29, 2016)

AA

The director of the tax office

2016.21

2016.29

1. The plaintiff's claim is dismissed.

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

On September 1, 2014, the Defendant of the Gu office confirmed that the disposition of imposition of capital gains tax of KRW 000,000,000 against the Plaintiff was null and void.

1. Details of the disposition;

A. On August 24, 2004, the Plaintiff purchased KRW 00,000,00 from last*** from City****,**,00 square meters of forest 00-0,000 square meters (hereinafter “instant land”).

B. On March 17, 2005, the Plaintiff sold the instant land to Park*, Park*, Park*, Soh** (hereinafter referred to as the “instant sales contract”) and completed the registration of ownership transfer as to the respective shares of the instant land (*** 347/4,983 shares, * 2,798/4,983 shares, * *1,83 shares, *1,83 shares, * *1,83 shares, *4,98/4,983 shares, *) of the instant land on March 24, 2005.

C. On May 31, 2005, the Plaintiff reported to the Defendant on March 10, 2005 that “The Plaintiff transferred 1/3 shares of each of the instant land to KRW 00,50,000,00 in total.” The Plaintiff scheduled and paid KRW 00,000,000 in capital gains tax.”

D. This** has completed the registration of ownership transfer for shares of 2,798/4,983 out of the land of this case due to sale by voluntary auction on July 13, 2012.

E. During the process of determining the transfer income tax for the year 2012 on Park Jong-chul*, the Director of the Yongsan Tax Office determined the purchase price of the instant sales contract as KRW 00,000,000, and notified the Defendant of the assessment data of the transfer income tax.

F. Accordingly, the Defendant decided and notified 00,000,000 capital gains tax for the year 205 (hereinafter “instant disposition”) on September 1, 2014 on the ground that “the Plaintiff, on September 1, 2014, determined the transfer value as KRW 00,000 according to the actual contract document of the instant sales contract,” following the prior notice of taxation on March 27, 2014.

[Ground of recognition] Facts without dispute, Gap evidence 1 to 3, Eul evidence 1 to 4 (including branch numbers; hereinafter the same shall apply) and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The parties' assertion

1) The plaintiff's assertion

The period for which the transfer income tax for the plaintiff can be imposed pursuant to the relevant statutes is five years from June 1, 2006 to May 31, 201, which is the starting point for the period from June 1, 2006 to May 31, 201. Since the instant disposition was issued on September 1, 2014, the period for which the transfer income tax for the plaintiff was imposed pursuant to the relevant statutes, it constitutes a taxation that was imposed after the lapse of the exclusion period for imposition

The defendant asserts that the exclusion period of transfer income tax is not five years but ten years since the plaintiff committed fraud or other unlawful acts. However, the plaintiff did not commit fraud or other unlawful acts. Therefore, the defendant's above assertion is without merit.

2) The defendant's assertion

The Plaintiff filed a false double contract with the actual transfer value of the instant land KRW 00,000,00 at the time of the preliminary return and payment of the capital gains tax in 2005, and filed a return of the transfer value under the amount of KRW 00,500,000. This constitutes a fraudulent or other unlawful act, and in such a case, the exclusion period for imposition of capital gains tax is extended to ten years, not more than five years, and thus, the instant disposition made before May 31, 2016 is lawful.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Article 26-2(1)1 and 3 of the former Framework Act on National Taxes (amended by Act No. 8139, Dec. 30, 2006; hereinafter “former Framework Act on National Taxes”) provides that “National taxes may not be imposed after the expiration of a period of five years from the date on which the relevant national taxes may be imposed, and where a taxpayer evades a national tax, or is refunded or deducted by fraudulent or other unlawful means, no national tax may be imposed after the expiration of a period of ten years from the date on which the relevant national tax may be imposed.”

According to Article 12-3 of the former Enforcement Decree of the Framework Act on National Taxes (amended by Presidential Decree No. 19893, Feb. 28, 2007); Article 94(1)1, and Article 96(1)4 of the former Income Tax Act (amended by Act No. 7837, Dec. 31, 2005); the date (the starting date of the exclusion period of imposition) on the Plaintiff for the transfer income tax of 2005 for the sale of the instant land is June 1, 2006; 2) the date on which the Plaintiff may impose the transfer income tax of 2005 for the sale of the instant land (the starting date of the exclusion period of imposition) shall be June 1, 2006; 2) the taxpayer’s act of preparing and submitting a false double sales contract stating the amount of transfer of the real estate undergoes the amount of transfer, making it considerably difficult to impose and collect taxes as an active deception; and thus, it constitutes “Fraud or other unlawful act” (see Supreme Court Decision 44434Du4, Mar. 20, 2015

On the other hand, in an administrative litigation claiming the invalidity of an administrative disposition as a matter of course and seeking the invalidity confirmation thereof, the plaintiff is liable to assert and prove the reason why the administrative disposition is null and void (see Supreme Court Decision 9Du11851, Mar. 23, 200).

3) The plaintiff reported on May 31, 2005 that "the plaintiff transferred the land of this case to the defendant 00,500,000 won on March 10, 2005" and that the transfer income tax of 00,000 won was scheduled and paid as stated above. Considering the overall purport of arguments in the evidence Nos. 2, Nos. 3 and 4, the plaintiff's actual purchase price of the sales contract of this case as agreed between Park Jong-nam and the purchaser at the time of the sales contract of this case was 00,00,000 won, the plaintiff's gambling**** * the sale of this case's land * the sale price of this case's land 10,50,000 won, and the plaintiff's actual sale price of this case's land belongs to the defendant 20,000,000 won or less than the original sale price of this case's contract of this case's 00,000 won,000 won.

4) As to this, the Plaintiff purchased and re- sold the instant land upon the recommendation or introduction of the wife’s small father*, who was the purchaser of the instant land. He did not face face-to-face *, Park*, Park*, Park*, Park *, Park *, Park *. However, he was aware that the sales price of the instant sales contract was 00,500,000, and accordingly, he reported the transfer income tax accordingly.* The fact that the actual sales price of the instant sales contract agreed between the buyer and the buyer was 00,000,000,000. Therefore, even if the Plaintiff reported the sales price different from the actual sales price of the instant land, he did not actively participate in the fraudulent act, such as preparing a false contract, and the Plaintiff did not know that the actual amount of the sales price was 0,500,000,000.

However, the contents and legislative purport of Article 26-2(1)1 and 3 of the former Framework Act on National Taxes include not only the taxpayer's unlawful act, but also the taxpayer's unlawful act, such as the taxpayer's agent, performance assistant, etc. who obtains benefit from expanding the area of the act by entrusting the taxpayer with the management of related affairs, and thus, it is difficult for the tax authority to find the existence of any unlawful act, such as making it difficult for him/her to find any taxation requirement of the national tax, or making it difficult for him/her to find any omission report. Thus, the "illegal act" in this context includes not only the taxpayer's unlawful act, but also the taxpayer's unlawful act, such as the taxpayer's agent, performance assistant, etc. who obtained benefit from expanding the area of the act (see Supreme Court Decision 2010Du1385, Sept. 10, 2015). Thus, even if the plaintiff's assertion that the plaintiff's right to sell the sales contract of this case was granted to Park Nam, the evidence presented by the plaintiff cannot be justified.

5) Therefore, the instant disposition constitutes taxation conducted after the exclusion period for imposition expires.

Since there is a serious and clear defect, it can not be deemed null and void.

3. Conclusion

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

Relevant statutes

Article 26-2 of the former Framework Act on National Taxes (amended by Act No. 8139 of Dec. 30, 2006) (Period of Exclusion from Imposition of National Taxes)

(1) No national tax may be levied after the period as provided in the following subparagraphs expires: Provided, That if the mutual agreement procedures are in progress under a treaty concluded to prevent double taxation (hereinafter referred to as a “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

(4) The day when national taxes may be levied pursuant to each subparagraph of paragraph (1) shall be prescribed by Presidential Decree.

Article 12-3 of the former Enforcement Decree of the Framework Act on National Taxes (amended by Presidential Decree No. 19893, Feb. 28, 2007) (Initial Date for Exclusion of National Taxes)

(1) The date when the national taxes may be assessed under the provisions of Article 26-2 (4) of the Act shall be as follows:

1. In filing a return on the tax base and amount of a national tax, the following day of the deadline for filing a return or a deadline for filing a return on the tax base and amount of the national tax (hereinafter referred to as "period for filing a report"). In such cases, the interim prepayment, spirit and

2. For unjust profits taxes and stamp taxes, the date when the liability to pay the national taxes comes into existence.

1. In the case of national taxes levied on a withholding agent or a taxpayers association, the following day of the statutory due date for payment of the withheld tax or the tax amount collected by the relevant taxpayers association; 2. Where the statutory due date for payment prescribed in subparagraph 1 is extended, the following day of such extended due date;

- Where collected through 9- the date on which grounds for collecting the deducted tax amount arise.

○ Article 94 of the former Income Tax Act (amended by Act No. 7837 of Dec. 31, 2005) (Scope of transfer income)

(1) Transfer income shall be the following incomes generated in the relevant year:

1. Income accruing from transfer of land (referring to a lot of land subject to registration of land category in the cadastral record under the Cadastral Act) or buildings (including the facilities and structures annexed to such buildings) ;

(1) The transfer value of assets referred to in Article 94 (1) 1 and 2 shall be the standard market value at the time of transfer of the assets concerned: Provided, That where the assets concerned fall under any of the following subparagraphs, the actual transaction value between the transferor and transferee (hereinafter referred to as “actual transaction value”) shall apply:

4. In the case of real estate within one year after its acquisition.