Where any additional tax is imposed and only a total sum of additional tax is entered without expressly stating the type of such additional tax and grounds for calculation thereof, such imposition shall be unlawful.

In the event that the imposition of penalty tax is a disposition imposing penalty tax and only a total sum of additional taxes is entered without disclosing the type thereof and the basis for calculation thereof, such disposition may not be exempt from the illegality.

Article 97 (Calculation of Necessary Expenses for Capital Gains)

2013Guhap1711 Revocation of Disposition of Imposing capital gains tax

Park ○

Head of △ District Office

February 25, 2014

March 25, 2014

1. The Defendant’s imposition of penalty tax of KRW 46,492,49 out of the transfer income tax for the year 2001 owed to the Plaintiff on April 1, 2012 shall be revoked.

2. The plaintiff's remaining claims are dismissed.

3. 3/10 of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

The imposition of capital gains tax of KRW 71,007,395 (including additional tax of KRW 46,492,49) on the Plaintiff on April 1, 2012 shall be revoked.

1. Details of the disposition;

가. 원고는 1999. 5. 4. 이AA(개명 전 이름 : 이BB)으로부터 ◎◎ ◎◎구 ◎◎동 ◎◎-◎◎ ◎◎◎◎아파트 ◎◎동 ◎◎호(이하 '이 사건 아파트'라 한다)의 분양권을 245,329,000원에 취득하였고, 2001. 12. 4. 박CC에게 이 사건 아파트를 327,500,000원에 양도한 후, 같은 날 그 양도가액을 170,000,000원, 취득가액을 245,329,000원으로 하여 2001년 귀속 양도소득세(0원)를 신고하였다.

B. On September 28, 2011, the head of the Si/Gun/Gu tax office notified the Defendant of the difference between the transfer value reported by the Plaintiff and the acquisition value reported by ParkCC. On April 1, 2012, the Defendant re-calculated the transfer value to KRW 327,50,000, and notified the Plaintiff of the correction and notification of the transfer income tax of KRW 78,770,010 (including additional tax of KRW 51,575,119) reverted to the Plaintiff in April 1, 201 (hereinafter “instant disposition”).

C. On July 2, 2012, the Plaintiff appealed and filed an appeal with the Tax Tribunal on November 9, 2012. On April 5, 2013, the Tax Tribunal rendered a decision that “6,700,000 won of the construction cost of Vietnamn New City and Changho-ho” included necessary expenses in the calculation of necessary expenses.

D. On April 17, 2013, the Defendant re-calculated the total amount of tax calculated according to the foregoing ruling and corrected the amount of tax to KRW 71,007,395 (including additional tax 46,492,49) from KRW 78,770,015 to KRW 71,07,395 (hereinafter “instant disposition”).

Facts without any dispute arising in recognition, Gap's 1, 2, 3, 5, 6, Gap's 7-3, Eul's 1 through 4, and the purport of the whole pleadings.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) In rendering the instant disposition, the Defendant’s disposition was unlawful since it did not deduct KRW 22,00,00,000, brokerage commission, KRW 3,500,00, and KRW 2,80,000, and the cost of interior repair and expansion construction as necessary expenses, excluding the parts acknowledged in the instant judgment from among the construction cost, such as the construction cost, which the Plaintiff incurred in relation to the instant apartment, as well as KRW 2,80,00,00, and the cost of interior repair and expansion construction, as necessary expenses, and thus, the instant disposition was unlawful.

2) The Defendant did not state the type of penalty tax and the grounds for calculation in the notice of tax payment, but did not state it to the Plaintiff. As such, the penalty tax portion among the instant disposition is unlawful.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Whether necessary expenses are recognized

A) Legal principles

In a lawsuit seeking revocation of a disposition imposing income tax, the burden of proof on the tax base, which is the basis of taxation, shall be imposed on the tax authority, and the tax base of revenue and necessary expenses shall be deducted from necessary expenses, so the tax authority shall, in principle, bear the burden of proof on the tax authority. However, as necessary expenses are more favorable to the taxpayer, and most of the facts generating necessary expenses are located within the territory under the control of the taxpayer and it is difficult for the tax authority to prove. Thus, in a case where it is reasonable to prove the taxpayer in consideration of difficulty in proof or equity between the parties, it accords with the concept of fairness to recognize the necessity of proof on the taxpayer (see Supreme Court Decision 2006Du16137, Oct

B) Determination

In light of the argument that the plaintiff spent the apartment of this case as the cover premium, brokerage commission, construction cost, etc., Gap evidence Nos. 7-1, 2, 3, 8-1, 10, 2, 10, 12-1, 2-1, 13-2, and 5-2 of Gap evidence Nos. 7-1, 10, 10, 12-1, 12-1, and 13 of Eul evidence Nos. 12-1, 2-2, and 5 are merely a simple receipt or a transferee's confirmation document, and the financial transaction details (Evidence No. 10) submitted by the plaintiff in order to support the above documents are inconsistent with the above receipts, and it is difficult to confirm whether the money was actually paid, and there is no other objective evidence to acknowledge that the above documents were actually paid or arranged after the lapse of 171, 201.

Rather, each of the above evidence, evidence No. 3 and evidence No. 6, which can be acknowledged by comprehensively considering the purport of the entire pleadings, namely, the following circumstances that the plaintiff asserted that the plaintiff paid the high amount of the purchase price to thisA with the premium of 22,00,000,000, the financial transaction details under the name of the plaintiff do not reveal the details of the plaintiff's withdrawal or payment at the time when the plaintiff acquired the apartment of this case. The date of approval for the use of the apartment of this case was December 23, 200, and the date of payment of the receipt of the internal repair or expansion construction cost was made on April 20, 200 and May 8, 200, and it is difficult to accept the plaintiff's assertion that the construction was made seven to eight months prior to the date of approval for the use as of May 8, 200. In light of the fact that the plaintiff did not claim the deduction of necessary expenses with respect to the internal repair and expansion of construction cost at the time of a request for the Tax Tribunal, it is unlawful.

2) Whether procedures for imposing additional tax are complied with

A) Legal principles

There is no provision on the method of imposing additional tax in the Framework Act on National Taxes or individual tax laws. However, even though additional tax is imposed as a principal tax item (main sentence of Article 47(2) of the Framework Act on National Taxes), its essence is a kind of administrative sanction imposing obligations prescribed by tax laws on taxpayers who violate the tax law without justifiable grounds in order to facilitate the exercise of the right to impose tax and the realization of tax claims. Therefore, the principle of due process should be applied more strongly.

Furthermore, additional tax is not only diverse types of principal tax by each item of tax, but also various grounds for imposition and calculation. Therefore, if a tax payment notice does not state the grounds for calculation of additional tax, it would be difficult for a person liable for tax payment to understand whether additional tax is imposed on a person liable for duty payment. In light of this point, the purport of the provision of Article 9(1) of the National Tax Collection Act or the provision of individual tax law, such as inheritance and gift tax law Article 77 of the Inheritance and Gift Tax Act, should be applied to a tax payment notice.

Meanwhile, as the imposition of principal tax and the imposition of additional tax are separate taxation, if multiple kinds of additional tax are imposed for the same tax item, the imposition of individual tax should also be deemed separate taxation for each type. Therefore, if the principal tax and the additional tax are to be imposed together by a single tax payment notice, the relevant tax amount and the calculation basis thereof should be separately stated in the tax payment notice. In addition, if multiple kinds of additional tax are to be imposed together, it is natural for the taxpayer to have the content of each tax disposition known by classifying the amount and the calculation basis thereof by type.

Therefore, in a case where the imposition of penalty tax is a disposition imposing penalty tax and only a sum of the grounds for calculation of penalty tax are stated without disclosing the relevant type and tax amount (see, e.g., Supreme Court en banc Decision 2010Du12347, Oct. 18, 2012).

B) Determination

In full view of the purport of the arguments in Gap evidence Nos. 1 and 2, Eul evidence Nos. 3 and 4, the tax amount of the original disposition of this case was calculated by adding KRW 27,770,015 to KRW 27,194,89,489, and KRW 48,630,000 for additional tax on negligent tax on negligent tax returns, and KRW 71,007,395 for additional tax on negligent tax returns and KRW 24,514,896 for additional tax on negligent tax returns and KRW 44,041,010 for additional tax on negligent tax returns and KRW 44,041,010 for additional tax on negligent tax, without distinguishing each of the above additional tax by type. The fact that each of the above additional tax was not stated separately from the principal tax amount, even in the notice of correction determination, the tax base and total tax amount are stated only in the notice of correction determination, and the fact that there is no other basis for calculating additional tax amount can be found.

Examining the above facts in light of the legal principles as seen earlier, the notice of tax payment on the imposition of penalty tax in the instant disposition does not contain any defects such as omitting the matters required by the relevant statutes, and there is no reason to deem that the defect was corrected or cured. Thus, the imposition of penalty tax in the instant disposition is unlawful

Therefore, since the disposition of this case should be revoked, the plaintiff's above assertion is justified.

3. Conclusion

Therefore, the part of the disposition imposing additional tax among the plaintiff's claims is justified, and the remaining claims are dismissed as it is without merit. It is so decided as per Disposition.