National Highway Development Corporation (Attorney Kim Jong-won, Counsel for defendant-appellant)

Head of Ansan-si (Attorney Lee Dong-gu, Counsel for defendant-appellant)

August 31, 2011

Suwon District Court Decision 2010Guhap2945 Decided January 19, 2011

1. The part against the defendant in the judgment of the first instance shall be revoked;

2. The plaintiff's claim corresponding to the above cancellation part is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

The Defendant’s disposition of imposition of KRW 3,591,496,540, local education tax, KRW 658,41,020, and KRW 15,750,320, and KRW 15,7575,030, and KRW 15,7575,030, and KRW 15,75,030, which the Defendant revoked (name omitted) the disposition of imposition of KRW 3,591,496,540, and KRW 658,441,020 on the above land (name omitted), which was imposed by the Plaintiff on the land (name omitted), during the period of Ansan-si owned by the Plaintiff on September 10, 208, the Defendant’s disposition of imposition of KRW 15,750,320, and KRW 1,575,030, which was imposed by the court of first instance,

2. Purport of appeal

The part against the defendant in the judgment of the first instance shall be revoked. The plaintiff's claim corresponding to the above revocation shall be dismissed.

1. cite the judgment of the first instance;

(1) The court shall add "(2) 1. Disposition, 2.3. The plaintiff's assertion, 2.2. claim and judgment(1) , 3. Determination(1) , 6.1. The first argument will be reduced to the sixth fourth (6th to the sixth fifth) of the judgment of the court of the first instance" (see Supreme Court Decisions 89Nu7207, Feb. 13, 1990; 2006Du2503, Jun. 15, 2006; 2.12th to the fifth (15th), 4th (12th (12th) through 3th (18th) of the judgment of the court of the second instance, and 3th (13th) through 4th (2) of the Civil Procedure Act which reduces the scope of the disposition to the fourth (12th) through 18th (3th) of the second one, 4th (2013th) of the judgment of the second instance."

2. A new part.

(2) Judgment on the second argument

(A) In light of the following circumstances in which evidence Nos. 8 through 18, 34, 36, 39, 40, and 41 were included, and evidence Nos. 1 and 138 (1) 3 of the former Local Tax Act (amended by Act No. 6842 of Dec. 30, 2002; hereinafter the same) can be comprehensively considered in the testimony of Non-party 1 and Non-party 2 of the trial witness of the court of first instance, the Plaintiff filed the registration of the principal office on August 28, 2002, but actually maintained the personal and physical facilities used in Seocho-gu Seoul ( Address 2 omitted), the former head office of which is the Seoul ( Address 2 omitted) (the head office is deemed to have been moved to Seoul). Thus, the Plaintiff still has the head office in Seoul, and thus meets the requirements for imposition of registration tax under Article 138 (1) 3 of the former Local Tax Act (amended by Act No. 6842 of Dec. 30, 20002).

① On August 28, 2002, “Grain-si ( Address 1 omitted)” recorded as the seat of the Plaintiff’s headquarters did not exist, and on August 31, 2002, “Grain-si ( Address 5 omitted)” registered as the seat of the Plaintiff’s headquarters, a model house temporary building was located. At the time, the owner was a national highway construction, which was the Plaintiff-related company, and the user was another Plaintiff-related company that leased the second floor office of the said building from the national highway construction. According to the re-lease contract (Evidence 3-3), the Plaintiff stated that the second floor level of the apartment house was KRW 20 million from the national highway L&C and KRW 10 million,000,000,000,000,000,000,0000,000 won, there was no record or data that the Plaintiff actually paid the lease deposit or monthly rent.

② There is no evidence that the head office had been moved from the Seoul to the permissible location and paid directors’ fees. In the event of the relocation of the head office to the permissible location, there is no evidence about how to process the equipment used in Seoul ( Address 2 omitted) as the former head office, and how to purchase new office equipment, etc. from the permissible location.

③ From September 2002 to October 2003, 2003, after the location of the head office was transferred in the corporate register, the Plaintiff paid KRW 300,000 per month in the name of lease and management expenses of the former head office in Seocho-gu ( Address 2 omitted), Seocho-gu, Seoul, the former head office, and KRW 1,30,00 per month in the name of security service fees. The Plaintiff paid food expenses, office supplies expenses, and purchase expenses to restaurants, Seodaemun stores located in the vicinity of the Seoul distributiondong. On August 2002, the Plaintiff purchased heating gas, etc. in the vicinity of the Seocho-gu, Seoul, the main office of which was located after the relocation of the head office. On the other hand, there was no actual change in the number of employees before and after the relocation of the head office.

④ While issuing a tax invoice between October 5, 2002 and November 7, 2006, the Plaintiff entered part of the Plaintiff’s address as “( Address 2 omitted)” (On the contrary, the service contract written from January 1, 2004 to December 12, 2005, the Plaintiff’s address is the above ( Address 4 omitted) after the Plaintiff moved its head office to Gangnam-gu Seoul ( Address 4 omitted). Of the official letter sent to Daelim Industrial Co., Ltd., Ltd., a contractor during the construction process of the instant building, the Plaintiff’s address is described as Seoul ( Address 2 omitted) (on the half of the page, from December 19, 2003 to November 15, 2003). The Plaintiff’s address is omitted as the address of Gangnam-gu Seoul (No. 44, 2003).

⑤ The Plaintiff continued to pay the resident tax from August 2002 to December 2002, 2002 to the Seocho-gu Seoul Metropolitan Government Office as before.

④ The Plaintiff completed the registration of transfer of the location of the head office ( Address 5 omitted) rather than the Gi-si ( Address 1 omitted), which the Plaintiff claims as the head office as of the date immediately preceding the registration of transfer of the ownership of the instant land. It seems that the Plaintiff immediately transferred the head office in order to avoid local taxes.

(B) Even though the head office was not relocated to a large city within the large city, the exclusion period for imposition of ten years shall apply since the active act that makes it impossible or considerably difficult for the tax authority to impose and collect taxes by filing a registration tax on the land within five years from the date of incorporation after the Plaintiff falsely prepared the minutes of the extraordinary general meeting of shareholders and the board of directors, amended the articles of incorporation, and registered the transfer of the head office within the large city by filing a registration tax return at a general rate other than the heavy tax rate, and evaded the tax amount equivalent to the difference because the taxpayer’s failure to impose and collect taxes is an active act that makes it impossible or considerably difficult for the tax authority to impose and collect taxes. The first disposition made before the lapse of ten years from August 29, 2002, which is the date of registration by the Defendant, was not the exclusion period for imposition of ten years.

(3) Judgment on the third argument

According to the evidence Nos. 30 and 31, the defendant, after conducting a tax investigation with respect to the plaintiff, notified the plaintiff on May 2, 2008 that the registration tax, etc. for the land of this case is expected to be more severe, and notified the plaintiff on May 2, 2008 that the plaintiff can claim the review of the legality before taxation. Accordingly, the plaintiff submitted to the defendant on June 4, 2008 the data that the location of the head office was permissible rather than Seoul or Ansan market

(4) The Plaintiff’s assertion is without merit.

3. Conclusion

The part against the defendant in the judgment of the court of first instance shall be revoked. The plaintiff's claim as to the above revocation shall be dismissed.

Judges Kim Jong-dae (Presiding Judge)