Seoul Administrative Court 2012Guhap1447 ( November 23, 2012)

early 201st century0211 ( December 28, 2011)

Since a joint project cannot be deemed to have the intent to evade tax, the exclusion period of imposition shall be five years.

(1) As with the judgment of the court of first instance, joint business operators shall be recognized as having the intention of tax evasion in order to make the tax authority impossible or considerably difficult to impose and collect the tax, and the circumstances and evidence are insufficient to recognize it. As such, the initial taxation disposition is unlawful since five years have passed from the exclusion period for imposition of tax, and the initial taxation disposition is applied.

2012Nu39799 Revocation of Disposition of Imposing income tax, etc.

The AAA

Chuncheon Tax Office et al.

Seoul Administrative Court Decision 2012Guhap1447 decided November 23, 2012

May 29, 2013

July 3, 2013

1. The defendants' appeal is dismissed.

2. The costs of appeal are assessed against the Defendants.

1. Purport of claim

The assessment of the global income tax of 200 won for the Plaintiff on December 1, 2009, global income tax of 000 won for the year 2003, global income tax of 0000 won for the year 2004, global income tax of 0000 won for the year 2005, global income tax of 0000 won for the year 2007, global income tax of 2007, and global income tax of 000 won for the year 2007 shall be revoked by the head of the Defendant provincial tax office on December 1, 2009 against the Plaintiff on December 1, 2009, value-added tax of 000 won for the year 203, and value-added tax of 000 won for the year 1, 2004, and value-added tax of 000 won for the second period for the year 204.

2. Purport of appeal

The part of the judgment of the court of first instance against the defendants shall be revoked, and the plaintiff's claim corresponding to the above revocation part shall be dismissed.

1. Quotation of the reasons for the judgment of the first instance;

The reasoning of this court's judgment, and the reasoning of the first instance court's judgment on the plaintiff's above A.1, are as follows, except for the following cases, and the reasons for the first instance court's judgment, and they are cited in accordance with Article 8 (2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

C.1) Judgment on the Plaintiff’s assertion

(1) Relevant legal principles

According to Article 26-2(1) of the Framework Act on National Taxes, if a taxpayer evades a national tax, or is subject to a refund or deduction by fraud or other improper means, it cannot be imposed after the lapse of seven years (paragraph (1) if the taxpayer fails to file a tax base return within the statutory due date of return), and any disposition taken after the limitation period of the imposition of national tax is invalid (see, e.g., Supreme Court Decision 2008Du109522, Dec. 23, 2010). Here, the term "Fraud or other improper act" under Article 26-2(1)1 of the Framework Act on National Taxes is identical to the term "Fraud or other unlawful act under Article 9 of the Punishment of Tax Evaders Act", and, i.e., acts recognized by social norms which enable the evasion of taxes, and i.e., fraudulent or other active acts which make it impossible to impose and collect taxes difficult, and referring to 10 or 20 other acts under tax laws, and it does not constitute a false report or other acts under taxation.

(2) Facts of recognition

In full view of the statements in Gap evidence 2, Eul evidence 9, Eul evidence 7, 8, 16, and 18, and testimony in the first instance trial witness BB, the following facts were recognized.

(A) On April 10, 2002, when the Plaintiff lent the Plaintiff the construction cost of KRW 000 to the Plaintiff incurred in the instant apartment project, the Plaintiff shall immediately pay the leased principal plus KRW 000,000, while all the taxes and public charges on the instant apartment project are agreed to be borne by the Plaintiff, and around that time, paid KRW 00 by the NAB.

(B) However, upon the request of the BB to provide the Plaintiff with a security for the above loans, the Plaintiff completed the registration of ownership transfer or the registration of ownership preservation in the name of B with respect to the land in which the instant apartment house is located and the newly constructed apartment house, and the 1/2 portion of the newly constructed apartment house.

(C) Until June 12, 2003, the Plaintiff paid 000 won (00 won was reduced by BB) in total the loans and interest on PEB, and even thereafter, the real estate registration name on the business registration and the instant multi-family housing in joint name with YB was not changed into the Plaintiff’s sole name. However, the Plaintiff was fully liable for the global income tax, value-added tax, and acquisition tax, and registration tax in the name of BB arising from the date, while the real estate registration name on the instant multi-family housing was changed into the Plaintiff’s sole name.

(C) On April 8, 2010, the head of Gangnam-gu Seoul Northern District Office: (a) held the title trust with the Plaintiff on April 8, 2010, and (b) held the title trust with 1/2 of the real estate shares connected to the instant apartment units; (c) imposed a penalty of KRW 000 upon the Plaintiff in violation of the Act on the Registration of Real Estate under Actual Titleholder’s Name; and (b) filed a lawsuit seeking revocation of the said disposition with the Seoul Administrative Court 201Guhap3234; and (c) concluded by both parties to the said lawsuit, the head of the Seoul Northern District Office (Seoul Northern District Court) reduced the penalty of KRW 00, and the Plaintiff withdraw the lawsuit.

(3) Determination

Therefore, in light of the above legal principles, the Plaintiff’s disposal of the instant apartment 20 years after its initial operation of the instant apartment 30B, and the Plaintiff’s disposal of the instant apartment 20 years after its establishment by dividing the total amount of income 50% into 00, and the Plaintiff’s disposal of the instant apartment 20 years after its initial operation of the instant apartment 30 years. The Plaintiff’s disposal of the instant apartment 20 years after its establishment was 60, and the Plaintiff’s disposal of the instant apartment 20 years after its establishment was 60, and the Plaintiff’s disposal of the instant apartment 3 years after its establishment was 60, and there is no other evidence to acknowledge otherwise, that the Plaintiff’s disposal of the instant apartment 20 years after its establishment was 60, and that it was difficult to expect that the Plaintiff would have been 00,000 if its establishment was 60,000,000 won or more, and that it would be difficult for the Plaintiff to independently construct and operate the instant apartment 2.

2. Conclusion

Then, the plaintiff's claim of this case is justified within the above scope of recognition, and it is dismissed as it is without merit, and the judgment of the court of first instance is just, and it is dismissed as the defendant's appeal. It is so decided as per Disposition.