Early High Court Decision 2008J 2816 ( October 08, 2008)

The act of making a double contract and filing a under-report on the transfer value constitutes fraud or other improper means.

It can be recognized that a false double contract is prepared and submitted along with a confirmation of the fact of real estate transactions in the purchaser's name and a certificate of his/her personal seal impression to confirm the contents of the above contract at the time of the payment of the above contract. This is a fraudulent or other unlawful act that

The contents of the decision shall be the same as attached.

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposition of capital gains tax of KRW 83,132,160 for the Plaintiff on July 1, 2008 shall be revoked.

1. Circumstances of the disposition;

A. On April 20, 2002, the Plaintiff transferred ○○○-dong ○○-2 ○○○○ apartment, 104 Dong 2201 (hereinafter “instant apartment”) to KRW 258,00,000, and reported and paid the transfer income tax with KRW 145,000,000.

B. On July 1, 2008, the Defendant confirmed that the transfer value of the apartment of this case was KRW 258,000,000, and notified the Plaintiff of KRW 83,132,160 for the transfer income tax belonging to the year 2002 (hereinafter “the disposition of this case”).

C. The plaintiff appealed and filed an appeal with the Tax Tribunal on July 28, 2008, but was dismissed on October 8, 2008.

[Ground of recognition] Facts without dispute, entry of Gap evidence 1 to 3, purport of the whole pleadings

2. Whether the instant disposition is lawful

(a)the master of the plaintiff;

The Plaintiff reported and paid the transfer income tax to KRW 145,00,000 upon the recommendation of a certified judicial scrivener who is able to do so at the time of the said report and payment, and did not intend to evade the transfer income tax by "Fraud and other unlawful acts." Therefore, the instant disposition is illegal after the exclusion period of five years expires.

B. Determination

Article 26-2(1)1 of the Framework Act on National Taxes provides that the exclusion period of the right to impose national taxes shall be ten years from the date on which the national taxes can be imposed if the taxpayer evades national taxes by "Fraud or other unlawful acts". In a tax in which the amount reported by the taxpayer is determined by the tax base, the establishment and submission of a false contract in which the taxpayer undergoes a false statement of the sale price in order to grant credibility to the amount reported and conceal the actual transaction price in the tax amount, constitutes "Fraud or other unlawful acts" (see, e.g., Supreme Court Decisions 2004Do2391, Jun. 11, 2004; 97Do2429, May 8, 1998).

Comprehensively taking account of the purport of the entire arguments in Gap evidence 3, Eul evidence 4-1, 5, 7, 8, and 9, the plaintiff was entitled to evade the transfer income tax of the apartment of this case with "Fraud and other unlawful acts", and the disposition of this case was lawful since it was made within the exclusion period of 10 years as stipulated in Article 26-2 (1) 1 of the Framework Act on National Taxes, since it was lawful since it was made within the exclusion period of 10 years as stipulated in Article 26-2 (1) 1 of the Framework Act on National Taxes, with a false contract stating 145,00,000 won much less than the actual transaction price as the sale price in order to reduce the amount of tax.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.