Cho Jae-2017-China-0267 (O6, 2017)

propriety of a disposition that applied ten years to the exclusion period for the imposition of national taxes for making a double contract because it was fraudulent or other unlawful

The exclusion period for the transfer income tax of this case is 10 years because the transfer income tax reported by means of preparing a false real estate sales contract falls under "Fraud or other unlawful acts."

Article 26-2 of the National Tax Basic Act

North Incheon District Court 2017Gudan494 Revocation of Disposition of Imposing capital gains tax

○ ○

○○ Head of tax office

November 28, 2017

8.02.06

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

Defendant’s imposition of KRW 36,088,80,00 on the Plaintiff on May 3, 2016, for capital gains tax of KRW 36,08,80 for the year 205.

Sector shall be revoked.

1. Details of the disposition;

A. On June 29, 2005, the Plaintiff acquired ○○○○○○○-dong 21-7 site 161m2 on the ground, and newly built 289.23m2 on the ground, and completed the registration of ownership preservation (hereinafter referred to as “the instant real estate”), and on November 23, 2005, transferred the instant real estate to Nonparty Kim○-○ on November 23, 2005, and filed a transfer income tax report with the Defendant along with a sales contract (hereinafter referred to as “the instant sales contract”).

B. As a result of the investigation of capital gains tax on the instant real estate from March 21, 2016 to April 19, 2016, the director of ○○ Regional Tax Office: (a) deemed that the actual transfer value was KRW 430,000,000, and the transfer income tax was written and thus the transfer income tax was under-reported; and (b) notified the Defendant of the taxation data by deeming that the transfer income tax was under-reported; (c) on May 3, 2016, the Defendant issued a correction and notification (hereinafter “instant disposition”) to the Plaintiff on May 3, 2016 on the premise that the exclusion period was ten years.

C. The Plaintiff appealed to the instant disposition and filed an appeal with the Tax Tribunal, but was dismissed on March 6, 2017.

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, Eul evidence 1 to 5, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

In light of all the circumstances, the fact that a double contract has not been prepared separately, and that it cannot be readily concluded as a multi-unit contract solely on the ground that the actual sales price paid is different, and that KimA presented door-gu receipts, etc. to reduce capital gains tax and did not submit the acquisition price of KRW 470,000,000, and that the instant sales contract was prepared by agreement between the seller and the buyer’s agent and the real estate agent, and the Plaintiff did not actively intervene without having been aware of the terms and conditions of the contract, etc., the instant sales contract cannot be deemed as false, and thus, the instant disposition made by applying the exclusion period for imposition of ten years is unlawful.

(b) Related statutes;

The former Framework Act on National Taxes (amended by Act No. 7930, Apr. 28, 2006; hereinafter referred to as the "former Framework Act on National Taxes")

D.)

Article 26-2 (Period for Excluding Assessment of National Tax)

(1) No national tax may be assessed after the period prescribed in the following subparagraphs expires: Provided, That a tax shall be assessed:

Mutual agreement procedures under the provisions of treaties concluded in order to prevent double taxation (hereinafter referred to as “tax treaties”).

Where the Adjustment of International Taxes is in progress, Article 25 of the Adjustment of International Taxes Act shall apply.

1. Where a taxpayer evades national taxes, or is refunded or deducted by fraudulent or other unlawful means;

for 10 years from the date on which national tax may be imposed;

2. If the taxpayer fails to file a written tax base return within the legal return term, the national tax concerned;

for seven years from the date on which the tax may be imposed;

3. If it does not fall under subparagraphs 1 and 2 above, the date on which the national tax is assessable; and

5 years;

C. Determination

1) Article 26-2(1) of the former Framework Act on National Taxes provides for the exclusion period for the assessment of national taxes; Article 26-2(1) provides for the exclusion period for the assessment of national taxes; Article 16-2(1) of the former Framework Act on National Taxes for ten years from the date on which the national tax is assessable if a taxpayer evades, obtains a refund, or deducts a national tax by deceit or other unlawful means (subparagraph 1); and for seven years from the date on which the national tax is assessable if a taxpayer fails to file a tax base return within the statutory due date of return; and

The legislative purport of Article 26-2(1) of the former Framework Act on National Taxes is to extend the exclusion period for the imposition of national taxes to 10 years, in principle, in cases where there is an unlawful act, such as making it difficult to discover any taxation requirement of national taxes or making it difficult for a taxpayer to discover any false fact, so it is difficult for the tax authority to expect the exercise of the imposition right. Therefore, “Fraud and other unlawful act” under Article 26-2(1)1 of the former Framework Act on National Taxes refers to a deceptive scheme or other active act which makes it impossible or considerably difficult to impose and collect taxes, and it does not constitute a mere failure to file a tax return under tax law without accompanying any other act or filing a false tax return (see, e.g., Supreme Court Decision 2013Du7667, Dec. 12, 2013). It is difficult for the taxpayer to determine the tax base on the amount reported by the taxpayer to make a false return and submit a false declaration to 100% of the actual amount of credibility and value of the tax (see, 2101.1.2).

Meanwhile, “unlawful act” under Article 26-2(1) of the former Framework Act on National Taxes includes not only the unlawful act committed by the taxpayer himself/herself, but also the unlawful act committed by the taxpayer, such as the agent or performance assistant, who obtains benefit from the expansion of the scope of the act by entrusting the person liable for duty payment with the management of the relevant business (see, e.g., Supreme Court Decision 2010Du1385, Sept. 10, 2015).

2) In light of the above legal principles, the following circumstances can be acknowledged in addition to the purport of the entire argument in the present case. ① The sales contract of this case was made up by the purchaser KimA after transferring the real estate of this case. The actual acquisition price was 470,000,000 won, and related receipts and financial data were submitted. ② Two copies of receipts prepared by the Plaintiff’s agent BB, which received 47,000,000 as down payment, and 383,00,000,000,000 won as down payment. ③ The Plaintiff asserted that the total amount of withdrawal of checks, etc. submitted by KimA was not 428,00,000,000 won, and ③ The Plaintiff did not reasonably explain that the transfer price of this case was 397,000,0000,000 won under the sales contract of this case, and the transfer price was 430,000,000 won.

Therefore, the filing of a transfer income tax by means of preparing a false real estate sales contract constitutes "Fraud or other unlawful act", and the proxy's unlawful act also constitutes an unlawful act under Article 26-2 (1) 1 of the former Framework Act on National Taxes. Therefore, the exclusion period for exclusion of the transfer income tax of this case is ten years.

Ultimately, since the exclusion period of imposition of the transfer income tax for the year 2005 shall begin on June 1, 2006, the disposition of this case, which was made on May 3, 2016 before the ten-year exclusion period expires, is legitimate, and the plaintiff's assertion disputing this is without merit.

3. Conclusion

Therefore, the plaintiff's claim is dismissed. It is so decided as per Disposition.