Seoul High-2015-0176 ( October 18, 2015)

The amount of tax paid by the performance assistant shall be included in the transfer value, and the exclusion period for imposition due to the illegal act of the performance assistant shall be ten years.

Since the amount of tax paid by the plaintiff is included in the transfer value, and the plaintiff's performance assistant submits a sales contract altered to the tax authority to evade the plaintiff's transfer income tax, the exclusion period of imposition of transfer income tax is 10 years pursuant to Article 26-2 (1) 1 of the former Framework Act

Article 26-2 of the former Framework Act on National Taxes

2015Gudan10657 Revocation of Disposition of Imposing capital gains tax

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Daejeon Head of the District Tax Office

December 4, 2015

January 15, 2016

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The Defendant’s disposition of imposition of capital gains tax (including additional tax) on August 1, 2014 against the Plaintiff on August 1, 201 shall be revoked.

1. Details of the disposition;

A. The Plaintiff transferred the instant real estate to A on July 27, 2007, to A.

B. A. On August 6, 2007, a provisional return of transfer income tax and resident tax was made under the Plaintiff’s name on August 6, 2007, and the Plaintiff paid transfer income tax and resident tax on behalf of the Plaintiff in 207 (hereinafter “amount of tax paid”).

C. On August 1, 2014, the Defendant issued a disposition to increase the Plaintiff’s transfer income tax (including additional tax) ○○○○ (hereinafter “instant disposition”) for the year 2007, including the transfer value.

[Ground of recognition] Facts without dispute, Gap evidence 1, Gap evidence 4-1, 2, Eul evidence 1, Eul evidence 4-1, 4-2, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

For the following reasons, the instant disposition is unlawful.

(i) the first argument;

A. A agreed to guarantee the residing period of the Plaintiff by June 30, 2008, which was exempted from the Plaintiff’s transfer income tax, and agreed to set an amount of compensation for the amount equivalent to the transfer income tax in preparation for a violation of the agreement. A. On July 27, 2007, the Plaintiff violated an agreement by paying the remainder to the Plaintiff on July 27, 2007, and the amount of the tax paid to the Plaintiff constitutes the amount of compensation for the Plaintiff’s special damage rather than the transfer price of the instant real estate. Therefore, the amount of tax

(ii) the second argument;

A. A did not notify the Plaintiff for his own interest, made it impossible to erase the portion of the duplicate of the sales contract, and submitted it to the tax authority. The Plaintiff did not participate in the act of A. Therefore, the exclusion period of five years is applicable to the disposition imposing capital gains tax. The instant disposition expired with the exclusion period.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

1) Determination on the first argument

A) The content of a real estate sales contract, which is a special agreement to bear the transfer income tax, etc. to be borne by the transferor, and if it is performed as is, the amount equivalent to the tax amount paid by the purchaser is in a quid pro quo relationship with the transfer of real estate (see Supreme Court Decision 92Nu2967, Jul. 14, 1992).

B) According to the purport of Gap evidence No. 3 and the whole pleadings, the plaintiff and Eul set "time of payment" as to "time of payment" at the time of the sales contract, "when the principal and tenants, etc. move to and complete the transfer of ownership after approval for the business, etc., and documents for transfer of ownership are delivered," and it can be acknowledged that "where the special agreement is guaranteed by June 30, 2008 under the tax law of Gap, Eul bears capital gains tax, and Gap bears the obligation to pay the remainder before the date, and it is a condition that the house other than the real estate of this contract is traded." Thus, the payment of the above amount of payment should be included in the transfer value because it is only the implementation of the special agreement stipulated in the sales contract and cannot be deemed as the payment of damages. Therefore, the plaintiff's first argument of the plaintiff is without merit.

2) Determination on the second argument

A) “Unlawful act” under Article 26-2(1)1 of the former Framework Act on National Taxes (amended by Act No. 8830, Dec. 31, 2007; hereinafter “former Framework Act on National Taxes”) includes not only the taxpayer’s unlawful act, but also the taxpayer’s unlawful act, such as the taxpayer’s agent or performance assistant, who gains a benefit from expanding the scope of the act by entrusting the taxpayer with the management of the relevant business (see Supreme Court Decision 2010Du1385, Sept. 10, 2015).

B) On August 6, 2007, the Plaintiff submitted a sales contract which deleted the part of the special agreement as seen earlier at the time of filing a preliminary return under the name of the Plaintiff to the tax authority on August 6, 2007, along with a sales contract which deleted the said special agreement. The fact that A paid a tax payment amount on October 1, 2007 and around October 2007, the Plaintiff issued a detailed statement and a payment receipt to the Plaintiff, respectively, is without dispute between the parties. A is deemed as an execution assistant for the Plaintiff’s preliminary return, and A is deemed as an execution assistant for the Plaintiff’s preliminary return, and the Plaintiff’s transfer income tax was evaded by committing an unlawful act by the Plaintiff’s execution assistant submitting a sales contract altered to the tax authority. Accordingly, the exclusion period of imposition of transfer income tax on the instant real estate is ten years pursuant to Article 26-2(1)1 of the former Framework Act on National Taxes, and the instant disposition was not expired. The second Plaintiff’s second assertion is

3) Sub-decisions

The instant disposition is lawful.

3. Conclusion

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