Cho Jae-2016-west-3845 ( December 29, 2016)

Counseling guidance of tax officials shall not be considered as a public opinion list merely as an administrative service.

In light of the fact that it is difficult for tax officials to apply the principle of trust and good faith to the tax authorities by deeming the tax authorities as a public opinion table due to a simple consultation or guidance level, and the fact that the claimant’s application of the special deduction for long-term holding on the land at issue is not deemed justifiable grounds for additional tax reduction and exemption.

Article 47-3 of the National Tax Basic Act

2017Guhap787 Revocation of Disposition of Imposing Additional Tax

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○ Head of tax office

June 23, 2017

July 14, 2017

1. The plaintiff's claim is dismissed.

2. The plaintiff shall bear the costs of lawsuit.

Cheong-gu Office

The imposition of penalty tax of KRW 000 on the Plaintiff on o. 2016 shall be revoked.

1. Details of the disposition;

A. On October 0, 1990, the Plaintiff acquired 00 m2,000 m2,000 m2,000 m2,000 m2, AAB-dong (hereinafter “instant land”). On October 0, 2010, the Plaintiff reported and paid KRW 000,000 capital gains tax by applying the special long-term holding deduction as of October 0, 2010.

B. At the time, Article 95 (2) of the former Income Tax Act (amended by Act No. 11611, Jan. 1, 2013) provides that "land for non-business use" is excluded from the special deduction for long-term possession.

C. The Plaintiff reported and paid the above capital gains tax with the assistance of the civil petition counselor belonging to the Plaintiff 00 years of age. On the back of the statement of calculation of capital gains installed by the Defendant, it stated that “the method of preparation” and “9. Long-term holding special deduction” shall be calculated by multiplying the gains on the transfer of land and buildings by the deduction rate according to the holding period following: Provided, That this does not include the non-business land subject to the special long-term holding deduction.

D. From October 0, 2010 to October 0, 2010, the Defendant conducted an investigation into capital gains tax on the Plaintiff, and as a result, confirmed that the instant land falls under the land for non-business under the Income Tax Act. On October 0, 2010, the Defendant determined and notified the Plaintiff of KRW 00 of capital gains tax, KRW 00 of additional tax on negligent tax returns, and KRW 00 of additional tax on negligent tax payment (hereinafter referred to as “additional tax on negligent tax and additional tax on negligent tax”).

[Reasons for Recognition] Facts without dispute, Gap 1 to 4 evidence, Eul 1 evidence, the purport of the whole pleadings

2. Relevant statutes;

It is as shown in the attached Table related statutes.

3. Whether the instant disposition is lawful

A. Summary of the plaintiff's assertion

The civil petition counselor belonging to the OOtax office provided the plaintiff with a special deduction for long-term holding, and there was no provision that the land for non-business is excluded from the deduction even on the back of the statement of capital gains calculation. Therefore, the disposition imposing the penalty tax in this case should be revoked on the ground that the plaintiff did not know that the land in this case was not subject to the special deduction for long-term holding because

B. Determination

In full view of the following circumstances, it is difficult to deem that the Plaintiff has justifiable grounds to regard the instant land as subject to the special deduction for long-term possession, considering the circumstances alleged by the Plaintiff.

1) In order to facilitate the exercise of taxation rights and the realization of tax claims, additional tax under the tax law is an administrative sanction imposed pursuant to the law if a taxpayer violates a return, tax liability, etc. as prescribed by the law without justifiable grounds, and the taxpayer’s intention or negligence is not considered as a justifiable reason. Moreover, even if a taxpayer has believed a tax official’s wrong explanation and failed to perform his/her duty to pay taxes, it cannot be deemed that such reason alone constitutes a case where there is a justifiable reason (see, e.g., Supreme Court Decision 2000Du5944, Apr. 12, 2002).

2) On the back of the statement of calculation of capital gains installed by the Defendant, the non-business land is not subject to special deduction for long-term holding, but is specified in Table 1 of Article 95(2) of the Income Tax Act, a basis law, as the Plaintiff, seeking special deduction for long-term holding, should have determined whether it constitutes special deduction for long-term holding by finding the basis law. The form of the report form kept by the tax authority is the taxpayer’s assistance in the preparation of the taxpayer’s report, and it cannot be said that all the matters prescribed by law

3) The current tax-related Acts adopts the method of filing a return by which a taxpayer voluntarily files a tax base and the amount of tax in major tax items, such as inheritance tax and gift tax, comprehensive real estate tax, etc. except for inheritance tax and comprehensive real estate tax, capital gains tax, corporate tax, and value-added tax, and the final liability for determining the appropriateness of the tax base and the amount of tax to be reported in the method of filing a return lies on a taxpayer. Since the tax authority’s guidance on the process of filing a return by a public official is to assist the taxpayer in filing a return on the relevant tax amount, it is difficult to deem that the tax-related disposition of this case

4. Conclusion

The claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.