Maritime Affairs- 2017-Mining-0460 ( March 23, 2017)

It cannot be deemed that there was a justifiable reason for not being negligent in the failure to pay taxes due to the lack of the method to know the acquisition value of the land acquired through the written decision on permission for successful bid.

The disposition of this case, which was imposed after correcting the acquisition value based on the successful bid price, is legitimate because it is clear that the land acquired through the successful bid is acquired in the auction procedure, and the written decision of granting the successful bid was kept in a court

Article 97 of the former Income Tax Act (Amended by Act No. 14389, Dec. 27, 2016); Article 176-2 of the Enforcement Decree of the Income Tax Act; Article 47 of the Framework Act on National Taxes

Maju District Court 2017Guhap1459 Revocation of a disposition of rectification of capital gains tax

AA

BB Director of the Tax Office

on October 03, 2018

on 06 October 07, 2018

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The Defendant’s imposition of capital gains tax of KRW 2,487,834,520 for the Plaintiff on November 8, 2016 shall be revoked.

1. Details of the disposition;

A. On June 10, 1994, the Plaintiff was awarded a successful bid for each of the 79,417/106,974 shares in DCC Doz. D. 14-1 forest land, 51,244m2, 14-7 forest land, 198m2, 14-7 forest land, and 14-11 forest land and 8,009m2, each of which is 79,417/106, 974m2 (hereinafter “land acquired”).

B. On August 10, 2015, the Plaintiff transferred each land indicated below (hereinafter referred to as the “transfer land of this case”) to EE, Co., Ltd. on the ground of the acquisition by consultation under the Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor (hereinafter referred to as “E”). (Omission)

C. On October 31, 2015, the Plaintiff reported and paid capital gains tax of KRW 1,348,170,279 on the ground that the transfer value of the instant transferred land cannot be confirmed as the actual transaction value at the time of acquisition and KRW 7,864,667,530 on the grounds that the transfer value of the instant transferred land cannot be confirmed.

D. On October 31, 2016, the Plaintiff asserted that the acquisition value of the instant transferred land was KRW 96,678,988,382, the actual transaction value, and filed a request for correction seeking refund of KRW 1,348,170,279, which was already paid.

E. On November 8, 2016, the Defendant rendered a decision and notification of capital gains tax of KRW 2,487,834,520 (including additional tax) against the Plaintiff on the ground that the successful bid price of the land acquired in this case is KRW 227,00,00,000, the acquisition price of the transferred land in this case was KRW 177,986,880, and dismissed the said request for correction on November 11, 2016.

F. On November 15, 2016, the Plaintiff appealed to the Tax Tribunal for a refund of KRW 1,348,170,279 to the Defendant, and filed an appeal with the Tax Tribunal to revoke the instant disposition. However, the Tax Tribunal dismissed the Plaintiff’s appeal on March 23, 2017.

[Ground of recognition] Facts without dispute, Gap evidence 1 through 3, 5, 6, Eul evidence 1 and 12 (including each number; hereinafter the same shall apply), the purport of the whole pleadings

2. Relevant statutes;

It is as shown in the attached Form.

3. Determination on the defense prior to the merits

A. The defendant's defense

In a request for a trial with the Tax Tribunal, the Plaintiff asserted that the acquisition value of the land acquired in this case is KRW 96,678,98,382, which is the actual transaction value, and there is no fact suggesting that the acquisition value of the land acquired in this case should be calculated as the conversion value of the land acquired in this case. Thus, the lawsuit in this

B. Determination

Since the subject matter of the disposition of revocation of imposition is the objective existence of the tax amount which is decided by the tax authority or recorded in the tax base return, and its identity is specified solely by the purport of the claim, it is merely an attack and defense that the individual illegal cause is justified (see, e.g., Supreme Court Decision 2002Du9261, Aug. 16, 2004). In determining whether the administrative litigation was conducted in the previous trial procedure, unless the allegations in the previous trial procedure are completely different from those in the administrative litigation, the arguments must not be identical, and the parties are entitled to submit the reasons that the plaintiff did not have claimed in the previous trial procedure as an attack and defense (see, e.g., Supreme Court Decision 9Du9407, Nov. 26, 199). The facts that the plaintiff sought the cancellation of the disposition of this case to the Tax Tribunal are as stated above. Thus, the plaintiff's appeal for the revocation of the disposition of this case is without merit.

4. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The Defendant calculated the acquisition value of the transferred land of this case on the basis of KRW 227,00,00,00, which is the successful bid price stated in the written decision of permission for the successful bid included in the auction records of this case. However, the auction records of this case, such as the destruction of the written decision of permission for the successful bid by other successful bidders, other than the written decision of permission for the successful bid, are not reliable, and there is no account book, sales contract, receipt, or other evidential documents necessary to confirm the actual transaction price at the time of transfer or acquisition, or there is no lack of significant part. The payment certificate of local tax related to the acquired land of this case, is "27,00,000 square meters of taxable object" and the tax base is different from the real estate indication stated in the above written decision of permission for the successful bid. The acquisition price of this case is 1,648,195,625,200 won as the officially assessed land price at the time of the auction of this case, and thus, it is difficult to deem that the acquisition price of this case was unlawful.

2) Although the Plaintiff filed a claim for rectification for refund of KRW 1,348,170,279, the instant disposition that imposed capital gains tax of KRW 2,487,834,520 is unlawful in violation of the principle of prohibition of disadvantageous alteration.

3) The Plaintiff did not know the decision to grant the successful bid for the land acquired in this case at the time of filing the transfer income tax return, and there was a justifiable reason for not being negligent in failing to pay taxes because there was no other way to know the acquisition value of the land acquired in this case, and thus, the portion of penalty tax in this

B. Determination

1) Acquisition value of the transferred land of this case

In light of the following circumstances, which are acknowledged by comprehensively considering the aforementioned evidence and the evidence set forth in the evidence set forth in subparagraphs 8, 9, and 2 through 4 above, the Plaintiff may fully recognize the fact that the land acquired in this case was awarded in KRW 227,00,000 at the auction procedure of this case on June 10, 1994. Therefore, the disposition of this case by the Defendant holding the acquisition value of KRW 177,986,80 on the basis of the above successful bid price is lawful, and the Plaintiff’s above assertion is without merit.

① In the written decision on permission for successful bid for the land acquired in this case, the successful bid price is KRW 227,00,000, and the above written decision on permission for successful bid was kept in a court, and it is difficult to deem that the Plaintiff’s assertion is insufficient solely on the ground that there is a written decision on permission for successful bid. In addition, there is no documentary evidence necessary to confirm the actual transaction price at the time of transfer or acquisition or that there is insufficient portion

② On June 3, 1995, the Plaintiff paid acquisition tax and special rural development tax on the land acquired in this case. Such taxable objects are written as “DD 14-1.79.0 square meters” and “227,000,000 square meters” and thus, the tax base is consistent with the successful bid price stated in the written decision on permission for successful bid.

③ In light of the fact that whether the above local tax payment was made against 79 square meters in the land acquired in this case, there was no record on the Plaintiff’s payment of local tax in relation to the acquisition of the land acquired in this case other than the above local tax payment; there was no special reason for the Plaintiff to pay local tax only with respect to 79 square meters in the land acquired in this case; and the CCC Mayor respondeds to the fact that the taxable area indicated as 79 square meters in the tax information as the taxable area was presumed to be an error of history and error

2) Whether it violates the principle of prohibition of disadvantageous alteration

Article 79 of the Framework Act on National Taxes, the principle of non-taxation and the principle of prohibition of disadvantageous change, cannot be applied to taxation by a tax authority, which is more unfavorable to the claimant than the initial tax authority’s disposition in a tax judgment (see, e.g., Supreme Court Decision 92Nu893, Jul. 14, 1992). In a case where there are omissions or errors in the tax base and amount of tax, the defendant can determine or correct the tax base and amount of tax at any time unless the taxation authority does not go against the exclusion period of taxation. Thus, the plaintiff’s assertion on this part is groundless

3) Whether the imposition of penalty tax is lawful

Article 48(1) of the Framework Act on National Taxes provides that no penalty tax shall be imposed only when there is a justifiable reason for failure to fulfill the obligation to pay taxes. In order to facilitate the exercise of the right to impose taxes and the realization of a tax claim, an additional tax is an administrative sanction imposed, as prescribed by the Act, in cases where a taxpayer violates various obligations, such as a tax return and tax payment, without justifiable grounds. Therefore, it is unreasonable for a taxpayer to be unaware of his/her obligation due to conflicting views arising out of a legal construction beyond a simple scope of a site or a misunderstanding of a tax law. Therefore, if there is a justifiable reason that it is difficult for a taxpayer to be aware of his/her obligation due to a lack of knowledge of the obligation due to a conflict of opinions arising out of a legal interpretation, such as where there is a circumstance to present a legitimate reason or where it is unreasonable to expect the relevant party to fulfill the obligation (see, e.g., Supreme Court Decision 2016Du4711, Oct. 27, 2016).

In light of the above provisions and legal principles, in light of the following circumstances acknowledged by comprehensively considering the aforementioned evidence as mentioned above and the evidence Nos. 17 and 18, the purport of the entire pleadings, it cannot be deemed that there was a justifiable reason that the Plaintiff neglected to pay taxes due to the lack of any method to know the acquisition value of the land acquired in this case. Thus, the Plaintiff’s above assertion is without merit.

① A certified tax accountant FF who has reported the transfer income tax on behalf of the Plaintiff, verified the certified copy of the real estate register of the transferred land of this case, and had the Plaintiff acquire the land of this case by auction and submit documents to the Plaintiff, knowing the fact that the Plaintiff acquired it by auction and the case number of the auction of this case.

② The Plaintiff reported the conversion price on the ground that it was impossible to verify the actual transaction price without being issued a written decision to grant a successful bid or a written confirmation of payment of local tax in the CCC viewing.

③ Although at least 20 years elapse at the time of the transfer of land that was directly awarded by the Plaintiff, the approximate successful bid price seems to have been capable of memory by the Plaintiff. Nevertheless, the Plaintiff asserted that the amount of KRW 96,678,98,382, which is too much different from the successful bid price of KRW 227,00,000, is the actual transaction price, and filed a request for correction of capital gains tax.

5. Conclusion

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