Any act of submitting a false sales contract shall constitute a fraudulent or other unlawful act.

The exclusion period is 10 years since the act of submitting a false sales contract with the intention to evade the transfer income tax and constitutes fraudulent or other unlawful act which makes it impossible or considerably difficult to collect the transfer income tax, and thus it constitutes a fraudulent or other unlawful act.

2012Guhap7777 Invalidity of a disposition imposing capital gains tax

United StatesAA

The director of the tax office

October 24, 2012

November 21, 2012

1. The plaintiff's claim is dismissed.

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

On June 1, 2012, the Defendant confirmed that the imposition of capital gains tax of KRW 000 for the year 2005 against the Plaintiff is null and void.

1. Details of the disposition;

A. 1) The Plaintiff completed the registration for transfer of ownership on March 9, 2004 with respect to the share of 1,565 square meters and 1317.53/2635 square meters in the name of the Plaintiff on January 16, 2004, among the 000 square meters and 000 OO Ri-type 236 square meters in Gwangju-si prior to the subdivision of Gwangju-si.

2) 분할 전 OOOO리 000 전 1，565㎡는 2005. 1. 24.경 분할 전 OOOO리 000 창고용지 908㎡， 분할 전 OOOO리 000 전 657㎡로 분할 및 지목변경되었다.

3) On March 2, 2010, an OOO 000 warehouse site for 908 square meters prior to subdivision was divided into 000-7 square meters for storage (the land category was changed to a site around April 25, 201) and 153 square meters for storage site for OO 000-12 (the land category was changed to a subsequent site) and OO 000-13 warehouse site for 0000-13 warehouse site for OO 000-136 square meters, and OO 000-11 prior to subdivision was divided into O 000-137 square meters for 657 square meters prior to subdivision (the land category was changed to a site around April 25, 201) and O 00-376 square meters prior to subdivision (the land classification was changed to a site) and the land classification was divided into 000-1428 square meters prior to subdivision (the land category was changed to a site).

4) On April 25, 201, an OOO 000-7 large 219 square meters was combined with 000-14 large 281 square meters, and an OO 000-7 large 500 square meters, and an OO 000-11 large 376 square meters were combined with 00-12 large 153 square meters, and the OO 000-12 large 153 square meters and became 529 square meters.

나. 원고는 2005. 2. 7. 분할 전 OOOO리 0000-7 창고용지 908㎡ 지상의 건물(이하 '이 사건 건물'이라 한다)에 관하여 그 명의로 소유권보존등기를 마쳤고，분할 전 OOOO리 0000-7 창고용지 908㎡， 분할 전 OOOO리 0000-11 전 657㎡，OOOO리 0000-8 도로 236㎡ 중 1317.53/2635 지분(이하 통틀어 '이 사건 토지'라 한다)과 이 사건 건물을 김KK 에게 매도한 후 2005. 5. 31. 김KK에게 이 사건 토지 및 건물에 관하여 2005. 5. 30. 매매를 원인으로 한 소유권이전등기를 마쳐주었으며， 2005. 5.경 피고에게 이 사건 토지 및 건물의 취득가액을 000원， 양도가액을 000원으로 하여 양도소득과세표준 예정신고를 하고， 2005. 6. 29.경 양도소득세를 납부하였다.

(c)

1) On February 3, 2004, the sales contract between the plaintiff and KimK on the land and building of this case, signed on February 3, 2004, stated that the sales price shall be KRW 000, and the intermediate down payment shall be KRW 000,000, and the remainder shall be paid on February 23, 2004, and the special agreement shall be transferred to KimK within 18 months from the date of registration of the plaintiff, and on February 2, 2004, the transfer income tax and all expenses shall be paid by KimK. The retaining wall shall be paid by the plaintiff, and the road packing shall be KimK.

2) As to the instant land and buildings, the sales contract dated May 30, 2005, prepared between the Plaintiff and Kim K, entered into between the Plaintiff and Kim K, into which KRW 00, and KRW 000, the intermediate payment, and KRW 000, the remainder payment, respectively, is written as of May 31, 2005.

(d)

1) On December 23, 2009, KimK transferred the instant land and buildings, and reported and paid the transfer income tax to the Defendant on or around February 25, 2010, and reported the acquisition value of the instant land and buildings to the Defendant as KRW 000,000, while, on or around July 4, 2011, it was not recognized for the reason that some of the necessary expenses reported to the Defendant, such as the retaining wall construction cost, were not objective evidence, and filed a request with the Tax Tribunal for a trial on or around July 8, 201, which was corrected and notified by the Defendant for the transfer income tax of KRW 00,000 for the year 209.

2) At the time of the above request for a trial, KimK decided to purchase the instant land from the Plaintiff at KRW 000, and made a sales contract on February 3, 2004, and paid the remainder on February 23, 2004, but did not meet the requirements for the acquisition of farmland that had to reside for not less than one year at the seat of farmland, and completed the registration of ownership transfer on May 31, 2005. As to the instant land, retaining wall construction (construction cost), drainage construction, road construction, and soil construction were completed, and the instant building was actually newly constructed, and entered into the sales contract on May 30, 2005, on which the purchase price was stated as KRW 00,00, after deducting the above construction cost from the purchase price (=00,000,000).

3) According to the sales contract dated February 3, 2004, the Tax Tribunal stated that the contract deposit of KRW 000 out of the purchase price is to be paid on February 23, 2004 when entering into the contract, and the remainder of KRW 000 when entering into the contract, and that the transfer of ownership was to be made on February 23, 2004 from the incorporation of KimK, and KRW 000 out of February 23, 2004, and the Plaintiff received 00 as part of the contract deposit on February 3, 2004, and issued a receipt to the Defendant that the Plaintiff received 400 million as the remainder of February 23, 2004, and that the Plaintiff received 250 million from the Kim Bank as the collateral of the land of this case to the Defendant that the previous owner of the land of this case was to be repaid on February 25, 2005, and thereafter, the Plaintiff received 205.

E. On June 1, 2012, the Defendant, after re-investigation, made 00 won the acquisition value of the Plaintiff’s land and building in this case (=00 won the acquisition value reported by the Plaintiff + the cost of retaining wall construction cost borne by the Plaintiff) and 000 won the transfer value (=00 won + the Plaintiff’s capital gains tax borne by KimK + 000 won), and corrected and notified 000 won the transfer income tax reverted to the Plaintiff in 205 (hereinafter “instant disposition”).

[Grounds for Recognition] The whole purport of the arguments and arguments described in the non-spe, Gap evidence 1, 2, 3, and 5, evidence 1 to 4, evidence 7 evidence 1, and Eul evidence 1 to 4, evidence 5, evidence 1, 2, and evidence 6, and evidence 6

2. Determination on this safety defense

The defendant, and the plaintiff filed the lawsuit in this case without going through a request for examination or adjudgment under Article 56 (2) of the Framework Act on National Taxes, which is the procedure of the previous trial, so the lawsuit in this case is unlawful, but the lawsuit seeking confirmation of invalidity of the administrative disposition can be filed without the need to go through the procedure of the previous trial, and the defendant's above assertion

3. Judgment on the merits

A. The plaintiff's assertion

The instant disposition is illegal and invalid since it was imposed after the lapse of five years from the exclusion period of imposition, and its defect is significant and apparent.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

Article 26-2(1) of the Framework Act on National Taxes (amended by Act No. 8139, Dec. 30, 2006; hereinafter the same shall apply) where a taxpayer evades, refunds, and deducts any national tax by deceit or other unlawful means, ten years ( Subparagraph 1) from the date on which the national tax is assessable, and where a taxpayer fails to file a tax base return within the statutory due date of return, the national tax shall be exempted.

"Fraud and other unlawful acts" under Article 26-2 (1) 1 of the Framework Act on National Taxes can be interpreted as the same meaning as "Fraud and other unlawful acts" under Article 9 of the Punishment of Tax Evaders Act. "Fraud and other unlawful acts" under Article 9 of the Punishment of Tax Evaders Act mean those acts with intent to evade tax, and those acts with intent to make it impossible or considerably difficult to impose and collect tax, and those acts without accompanying these acts do not constitute fraudulent acts (see, e.g., Supreme Court Decision 2005Do370, Mar. 25, 2005). Thus, the plaintiff's disposal is not merely a legitimate tax return under tax law or under-reported tax base and it does not constitute fraudulent acts (see, e.g., Supreme Court Decision 2005Do370, Mar. 25, 2005).

4. Conclusion

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