Seoul Administrative Court-2017-Gu Group-79946 ( October 25, 2019)

Cho Jae-2017-west-2865 ( October 11, 2017)

It is legitimate to apply the rate of additional tax on filing a lawsuit by deeming that the plaintiff's act of filing a report without permission is based on "Fraud or other unlawful acts" and applying the rate of additional tax on filing a lawsuit.

By reporting and paying capital gains tax on the expropriation of land held in title by a third party under the name of the trustee, the tax authority is unable or considerably difficult to impose and collect capital gains tax on the plaintiff who is the actual owner, and the purpose of tax avoidance is changed, and it is based on "Fraud and other unlawful acts."

Article 47-2 of the former Framework Act on National Taxes (Additional Tax on Non-Filing)

Article 27 of the Enforcement Decree of the former Framework Act on National Taxes (Additional Taxes)

2019Nu49030 Revocation of Disposition of Imposing capital gains tax

○ Kim

a) the Director of the Tax Office

September 11, 2019

November 6, 2019

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance shall be revoked. The defendant shall revoke all imposition of capital gains tax of KRW 25,625,310 for the plaintiff on June 2, 2016, capital gains tax of KRW 25,625,310 for the plaintiff, capital gains tax of KRW 57,932,949 for the year 201, capital gains tax of KRW 228,619,941 for the year 2014.

1. Quotation, etc. of judgment in the first instance;

This Court's reasoning is as follows. This Court's decision is identical to the reasons for the first instance court's decision (excluding the part of "3. conclusion") except to supplement or add the corresponding part of the first instance court's decision as follows 2, and it is also cited in accordance with Article 8 (2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

2. Revised parts

○ 6 under the six pages add “(s)” to the right side of the “equitable” (e.g., avoidance of progressive rates pursuant to the aggregate return of capital gains, application of overlapping of basic deductions, reduction and exemption, reduction and exemption special cases).

3. Supplement and addition of judgments;

The Plaintiff asserts as follows. In order to apply the penalty tax without filing a report, there must be active actions that make it impossible or considerably difficult to impose and collect taxes for the purpose of evading tax. The Plaintiff did not have the purpose of tax evasion, and there was no active deceptive act for the purpose of tax evasion, and there was no fact that the title trust itself was concealed or induced by active means. Moreover, determination of whether to impose unfair non-reported or general non-reported penalty tax for each year to which the title trust was reverted should be made. The amount of transfer income tax for the year 2010 and 2014 from the return of the transfer income tax by ○○○○ and the Plaintiff’s return after the due date of the transfer income tax under the name of the Plaintiff and the Defendant’s decision, the transfer income tax, transfer income tax, and calculated tax amount were both the same, and in the case of 2011, the difference between the transfer income tax amount due to the omission of filing a report in total (from 2010 to 2014) and the amount exceeding the amount of penalty tax for underreporting the general non-reported.

On the other hand, as decided in the judgment of the first instance court cited by this court, it is difficult to believe the Plaintiff’s assertion about the process of title trust as to the title trust. Rather, the Plaintiff appears to have intended to avoid tax burden following holding a large number of real estate in title trust to ○○○, and actually obtained a result of partly evading capital gains tax from the expropriation of the instant land. After accepting the instant land, the Plaintiff filed a return and payment of capital gains tax under the name of ○○○ after reporting and paying capital gains tax to ○○○○ was an active act as if the Plaintiff was the actual owner of the instant land. Even if the Plaintiff reported and paid capital gains tax for 2010 and 2014, which was similar to the amount to be reported and paid under the name of ○○○○○, was the intention of tax avoidance in the instant land title trust itself, and even if the Plaintiff had no other purpose of tax avoidance, the Plaintiff’s assertion that there was no reason to deem that there was no other purpose of tax avoidance in the Plaintiff’s report and payment under the name of ○○○○.

4. Conclusion

Therefore, the plaintiff's claim shall be dismissed as it is without merit. The judgment of the court of first instance is just with this conclusion, and the plaintiff's appeal is dismissed as it is without merit.