District Court-2018-Gu Partnership-11369 ( April 19, 2018)

Cho Jae-2015-Jung-4686 (2016.08)

Since there is no proof that part of the transfer price has been refunded, it is dismissed, and there is no reason to believe that the imposition of additional tax is unfair due to delay of taxation.

No evidence exists as to the Plaintiff’s assertion that the transfer value was confirmed due to the details of remittance by the purchaser, and that part of the purchase price was returned, the taxation disposition is legitimate. There is no ground for asserting that no additional tax was paid due to the delay of taxation, and the exclusion period for exclusion of imposition for the false declaration of transfer value is ten years

Article 69(1) of the Restriction of Special Taxation Act

2018Nu43592 Revocation of Disposition of Imposing capital gains tax

Yellow AA

BB Director of the Tax Office

Suwon District Court Decision 2018Guhap11369 Decided April 19, 2018

August 29, 2018

September 19, 2018

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance shall be revoked. The imposition of capital gains tax of KRW 141,741,520 (including additional tax) for the Plaintiff on July 1, 2015 by the Defendant shall be revoked.

1. Quotation, etc. of judgment in the first instance;

The reasoning of this court's judgment is as follows, except for the modification of the corresponding part of the judgment of the court of first instance as follows 2 and supplement or addition of the judgment as stated in paragraph (3), and it is identical to the reasoning of the judgment of the court of first instance (including its attached Form, but excluding the '3. conclusion' part). Therefore, it is acceptable in accordance with Article 8 (2) of the Administrative Litigation Act

2. Parts to be corrected;

○ 1-2 main text 1-A(3) of the main text 1-2(a) is "," and the parcel number, land category, etc. of each land shall be indicated based on the situation at the time of the sale, unless otherwise specified."

○ 3 4 to 5 parallels are as follows.

[Reasons for Recognition] Unsatisfy, Gap evidence Nos. 4, 5, 6, 12, 14 (including branch numbers, hereinafter the same shall apply), Eul evidence Nos. 1, 2 and 5, and the purport of the whole pleadings

○ The land in the 2nd table on the 4th page shall be "190 square meters out of the land".

The following shall be added between the 9th 5 parallel and the 6th tier:

Generally, in a lawsuit seeking the revocation of a tax imposition disposition, the burden of proof on the facts of taxation is a taxable person. However, in a case where it is revealed that the facts of taxation can be inferred in light of the empirical rule in the course of a specific lawsuit, it cannot be readily concluded that the pertinent tax disposition is an unlawful disposition that lacks the taxation requirement, unless it proves that the other party is inappropriate to apply the empirical rule (see, e.g., Supreme Court Decisions 2002Du6392, Nov. 13, 2002; 2006Du13831, May 29, 2008).

○ 9 6th page "the fact of recognition" is "the above legal principles and facts of recognition".

○ 9 8 to 9 - "The plaintiff's assertion is without merit" as follows.

Since it cannot be deemed that the disposition of this case is erroneous on the premise that the Plaintiff sold the Plaintiff’s land in KRW 471,90,000, this part of the Plaintiff’s assertion is rejected.

○ 11 The 5th page “(2013Du7667, Dec. 12, 2013, etc.)” is as follows.

Article 26-2(1)1 of the former Framework Act on National Taxes (see, e.g., Supreme Court Decision 2013Du7667, Dec. 12, 2013). In order to reduce capital gains without reporting the actual transfer value of real estate for sale purposes, an act of falsely lowering the transfer value and filing a final return on the tax base of capital gains by using a separate real estate sales contract stating the false lowering the transfer value, constitutes “Fraud or other unlawful act” (see, e.g., Supreme Court Decision 2012Du1315, Oct. 11, 2012).

3. Supplement and addition of judgments;

A. The plaintiff's assertion

On November 15, 2010, the Defendant was notified by the Director of theCC of relevant taxation data, and thus, even though it was possible to impose the relevant transfer income tax on the Plaintiff, the Plaintiff commenced a tax investigation on the Plaintiff as of February 23, 2015, and made the instant disposition on July 1, 2015. As a result, the imposition of large-amount of erroneous payment on the erroneous payment constitutes an excessive disposition, and thus, it constitutes a case of excessive disposition, and thus, the additional payment on the erroneous payment for the said period corresponding to the above period should be revoked.

B. Determination

In light of the following circumstances, the Defendant imposed the instant disposition upon the Plaintiff by applying the additional rate of 3/1000 per day to the unpaid period of capital gains tax, which is the principal tax, based on Article 47-4(1)1 of the Framework Act on National Taxes and Article 27-4 of the Enforcement Decree of the Framework Act on National Taxes, based on the following circumstances revealed by comprehensively taking account of the overall purport of the arguments as seen earlier, and the Defendant’s imposition of administrative sanctions against the breach of the liability for payment on the ground that: (i) the Defendant had the Plaintiff rendered the instant disposition by applying the additional rate of 3/1000 per day to the unpaid period of capital gains tax; and (ii) the additional additional tax is to induce the taxpayer to pay the tax in good faith; and (ii)

As above, the Plaintiff may be deemed to have received financial benefits for the unpaid tax during the non-taxation period, and the exclusion period of capital gains tax is statutory (Article 26-2 of the Framework Act on National Taxes). Accordingly, the imposition period of additional tax for unfaithful payment is limited to the scope thereof, and the maximum limit of additional tax for unfaithful payment is limited accordingly, it can be deemed that the law actually prescribes the maximum limit of additional tax for unfaithful payment (see Constitutional Court Order 2012HunBa355, Feb. 26, 2015). The Constitutional Court, based on the above grounds, determined that the relevant additional tax provision is constitutional as it does not violate the excessive prohibition principle (see Constitutional Court Order 2012HunBa355, Feb. 26, 2015). (4) The Plaintiff falsely reported the transfer income tax by submitting a false sales contract, and accordingly, could have anticipated that a disposition to correct it from the Defendant. (5) In light of the fact that the Plaintiff’s taxation disposition on the tax evasion delayed, even if the Plaintiff’s trust in such non-taxation status does not exist.

4. Conclusion

Thus, the plaintiff's claim shall be dismissed as it is without merit. The judgment of the court of first instance is just in conclusion, and the plaintiff's appeal is dismissed as it is without merit.