Seoul Administrative Court-2012-Gu Group-4565 ( October 16, 2013)

Examination-transfer-201-0208 ( November 11, 2011)

Requirements for Unfair Underreported Additional Tax

In the case of underreporting the tax base by such active acts as making it difficult to discover the taxation requirement of national taxes or forging false facts, it means that the under-reported return derives from the purpose of tax evasion, such as the avoidance of progressive tax rates and the application of the provisions on loss brought forward.

Article 47-3 of the Framework Act on National Taxes (Additional Taxes for Underreporting or Excess Refund Return)

2013Nu5465 Revocation of Disposition of Imposing capital gains tax

Appellant-Appellant

Section AA

Appellant-Appellants

The Director of the PPP Tax Office

Seoul Administrative Court Decision 2012Gudan4565 decided January 16, 2013

October 29, 2014

December 3, 2014

1.The judgment of the first instance shall be modified as follows:

A. On January 4, 2011, the Defendant’s imposition disposition of capital gains tax for the year 2009 against the Plaintiff is revoked; the Defendant’s imposition disposition of capital gains tax for the year 2009 on November 19, 2012 exceeding the OOOO won among the imposition disposition of penalty tax for failure to report capital gains tax for the year 2009 against the Plaintiff; and the imposition disposition of additional tax for failure to report capital gains tax for the year 2009, exceeding the OOO won among the imposition disposition of additional tax for failure to report capital gains tax for the Plaintiff is revoked.

B. The plaintiff's remaining claims are dismissed.

2. 1/10 of the total costs of litigation shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

1. Purport of claim

On January 4, 2011, the Defendant imposed an OOO of the principal capital gains tax for the year 2009 on the Plaintiff, and imposed an OOOO of the additional tax for the year 2009 on the Plaintiff on November 19, 2012, and imposed an OOO of the additional tax for the failure to file a return on the capital gains tax for the year 2009 on the Plaintiff, respectively (the Plaintiff amended the purport of the Defendant’s claim as above, upon the Defendant’s re-disposition on the additional tax of the capital gains tax for the year 2009).

2. Purport of appeal

A. The plaintiff

In the judgment of the first instance court, the part against the plaintiff is revoked, and the defendant's disposition of transfer income tax (including additional tax) for the plaintiff on January 4, 201, which reverts to the plaintiff on January 4, 201, is revoked, and the defendant's disposition of transfer income tax for the plaintiff on January 4, 2009 is revoked.

B. Defendant

The part against the defendant in the judgment of the court of first instance is revoked, and the plaintiff's claim corresponding to the above revocation is dismissed.

1. Details of the disposition;

A. On December 10, 2009, the Plaintiff transferred the real estate listed in the separate sheet No. 1 (hereinafter “the instant real estate”) on the land and its ground buildings, etc. (hereinafter “the instant real estate”) to the State, and reported the transfer value to the OOO and the acquisition value to the OO as the OO members.

B. However, on January 4, 2011, the Defendant issued a revised and notified the Plaintiff on January 4, 201, of the payment amount related to land diversion permission and the payment amount of the civil engineering construction cost, and of the acquisition amount of the portion of the building, the capital gains tax OOO(the principal capital gains tax + OOOOO Won of the additional tax + the additional tax amount due due due to the failure to report + the additional tax due due to the failure to report; hereinafter referred to as “the initial disposition”).

C. The original disposition of this case was corrected on May 11, 201 (i.e., the amount of capital gains tax + the amount of additional tax for failure to report + the amount of additional tax for failure to report + the amount of additional tax for failure to report) (hereinafter “the instant reduction disposition”). The Defendant did not notify the Plaintiff of the specific calculation details regarding the additional tax portion.

D. On November 19, 2012, the Defendant, at the first instance trial proceeding, revoked the portion of the penalty tax during the instant reduction disposition, and was calculated by the OOO of the penalty tax for failure to file a report by applying 40% of the illegally underreported penalty tax rate for capital gains tax to the OOOO of the principal tax. During 215 days, the Defendant issued a disposition imposing additional tax on the OOOO of the additional tax by disclosing that the amount of penalty tax for failure to pay was calculated by calculating the rate of KRW 3/10,000 per day for 215 days (hereinafter “instant disposition imposing additional tax”).

[Ground of recognition] Items A 1, 2, 26, and Eul 1, 6, and 9 respectively, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

With respect to the instant real estate, the Plaintiff disbursed the KRW OOO in addition to the succession to the land exclusive use permit, ② spent the KRW OOOOO in civil engineering construction cost, ③ spent the real estate consulting cost to the KRW 2B corporation (hereinafter “BB”) with the KRW 40% of the unfair under-reported penalty tax on the other premise is illegal to impose penalty tax by applying the tax rate of KRW 40% of the unfair under-reported penalty tax on the other premise.

B. Relevant statutes

Attached Table 2 shall be as stated in the relevant statutes.

(c) Fact of recognition;

1) Purchasing land among the real estate of the Plaintiff

A) On April 7, 1994, the Plaintiff entered into an agreement with Red E to purchase OO-gun 171, 188, 189 large scale 2,970 square meters in the purchase price OO-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O

B) On September 27, 1996, the Plaintiff entered into an agreement with FFF Co., Ltd. (hereinafter “FFF”), that “OO also purchases 189-1569 square meters, 188-1,572 square meters per annum, 171-21,820 square meters per annum, and 3,98 square meters per annum from the purchase price OOO, and that “the Plaintiff, the buyer, succeeds to the permission for conversion acquired by FFF, but bears the service costs and all costs incurred when the permission is granted by the seller.”

2) A contract for the construction of a factory site and drainage and drainage of the instant real estate

A) On February 26, 1996, the Plaintiff entered into a contract with H Construction Co., Ltd. (the representative II; hereinafter referred to as “H Construction”) on setting the factory site, stone and drainage pipes for the instant real estate as the OOO of the contract amount.

B) On November 30, 1999, the Plaintiff entered into a contract with the HaJ (KJ) to set up a contract for the stable construction and banking of the instant real estate as an OOO of the contract amount. When preparing the contract, the Plaintiff paid OOO in advance. HaJ (KJ), on November 30, 199, prepared a receipt that OOO was paid to the Plaintiff as the price for the said construction.

(iii) construction works, etc. in BB;

A) On December 198, 1998, the Plaintiff entered into a contract with BB (YG) on the terms that the construction of a factory and housing on the instant real estate surface is designated as a price OOO for the construction of a factory and housing on the instant real estate surface. For submission to financial institutions, the contract date retroactive to January 30, 1995 and the contract amount was also entered into with the content that the contract amount was also an OOO, including value-added tax, and BB completed the construction work around December 12, 199.

B) Meanwhile, around that time, the Plaintiff received a deposit sheet that it paid OOO won from the Chang Construction Cost, and on October 29, 1999, issued a receipt stating that the Plaintiff received 'OOO won from LL on November 13, 1999, in addition to the issuance of the total OOOO statement to LL operating the DD Building Design Office.’

C) On December 1, 2009, the Plaintiff requested the MM appraisal corporation to appraise the market price of the building parts, including factories and houses, among the instant real estate. As a result, the market price of the building parts among the instant real estate, including factories and houses, was assessed as OO won at that time.

(iv) a real estate consulting service contract;

A) On July 22, 2009, the Plaintiff entered into a service contract with the content that the Plaintiff shall develop and sell the instant real estate and delegate all the authority to thisN to thisN.

B) On February 9, 2011, this NN received a decision of three years of suspension of execution in the year and June, 2002, on the criminal facts that "as a result of solicitation between the Plaintiff and the Plaintiff, a land owner adjacent to the Han River basin area, and a public official in charge of the Han River basin environmental office on May 2009, the appraisal price is lower than the actual price of the land, and the State is allowed to purchase part of the purchase price as a reward fee, and the Plaintiff and her husband's husband's husband's husband's husband's husband's husband's husband's husband's husband's request for the affairs handled by the public official of OOOO in the aggregate."

5) The market price of the instant real estate and the result of appraisal of construction costs

당심 감정인 나QQ의 감정 결과에 의하면, 이 사건 부동산 중 공장 부분의 건축비용은 대지조성비를 제외할 경우 OOOO원, 대지조성비를 포함할 경우 OOOO원이고, 주택 부분의 건축비용은 OOOO원이며, 2009. 12. 10. 기준의 시가는 공장 부분이 OOOO원(대지조성비를 제외할 경우) 또는 OOOO원(대지조성비를 포함할 경우), 주택 부분이 OOOO원이다.

[인정근거] 갑 제4, 7 내지 13, 16, 20 내지 23, 25, 29호증, 을 제5호증(각 가지번호를 포함한다)의 각 기재, 당심 증인 이GG의 서면 증언, 당심 증인 나QQ의 감정결과 및 변론 전체의 취지

D. Determination

1) The portion of the OOO paid to FF in connection with land diversion permission

A) Comprehensively taking account of the above evidence and the purport of the entire pleadings, the following circumstances, namely, ① the Plaintiff, from the time the Plaintiff purchased part of the instant real estate from FF from FF, entered into an agreement with the Plaintiff that the Plaintiff, the seller, succeeded to the land diversion permit, and that the FF would separately bear the Plaintiff’s expenses incurred in connection with the permission; ② In full view of the entries of No. 5, written testimony and arguments by EG witnesses, the Plaintiff’s representative director of FF, on April 25, 2011, entered into an agreement with the fact that this GG, which had already received OF as the settlement amount for the money already invested in the cost related to the permission for land sale, can be acknowledged, and the Plaintiff’s assertion that the Plaintiff agreed to pay the expenses related to the permission for land diversion other than the purchase price at the time the FF purchased part of the instant real estate from FF from F, and that it actually paid the expenses pursuant to the Income Tax Act (amended by Act No. 12214, Apr. 16, 2019).

B) As to this, the Defendant alleged to the effect that the FF received OO's payment from the Plaintiff for expenses related to the permission for land diversion (Evidence No. 5), and that the date of preparation is "OO's payment" on October 20, 2006, and it is impossible to verify the financial data other than that of the Plaintiff's assertion. However, as alleged in the evidence No. 5, the entry in the year of preparation in the evidence No. 5 appears to be "06" rather than "96, as alleged by the Defendant." As seen above, the Defendant agreed to pay the FF and the Plaintiff for expenses related to the permission for land diversion at the time of the sales contract between the FF and the Plaintiff. The Plaintiff's payment of OO's payment to FF was difficult to secure financial data as of 18 years prior to the time of the closing of the argument in this case, in light of the contents of this case's written testimony by witnesses of this trial, the Defendant's assertion that the Plaintiff paid OFO's payment was without merit.

2) Parts of OOOO for the costs of civil works

위 각 증거들과 변론 전체의 취지를 종합하여 인정되는 다음과 같은 사정들, 즉 ① 원고가 이 사건 부동산을 매수할 당시 이 사건 부동산 중 일부에 대하여 '지목상 전이나 실제로는 웅덩이로 되어 있어 전입이 어려운 상황을 매도인이 책임지지 아니한다'는 내용의 약정을 하였던 점, ② 갑 제21, 27호증의 각 기재 및 영상과 당심 증인 이GG의 서면 증언에 변론 전체의 취지를 종합하면, 원고가 이 사건 부동산에 관하여 석공사, 배수관공사와 축대공사 및 성토공사를 하였던 사실, HH건설의 대표자였던 최II은 2012. 11. 9. '원고와의 도급계약에 따른 공사대금을 원고로부터 모두 정산받았다'는 내용의 정산확인서를 작성하여 주었던 사실을 인정할 수 있는 점, ③ 당심 감정인 나QQ의 감정 결과에 의하면 이 사건 부동산 중 공장 부분의 대지조성비가 약 OOOO원에 이를 것으로 추정되는 점 등을 종합하면, 비록 원고가 이 부분에 관한 금융자료를 제출하지 못하고 있다 하더라도, 원고가 HH건설에게 공장부지 석공사 및 배수관공사 대금 OOOO원, 윤JJ(KK병기)에게 축대공사 및 성토공사 대금 OOOO원을 지급하였음을 인정할 수 있다. 다만 원고가 윤JJ(KK중기)에게 위 OOOO원 이외에 OOOO원을 추가로 지급하였다는 점에 관하여는 갑 제9호증의 기재만으로는 이를 인정하기에 부족하고 달리 이를 인정할 증거가 없다. 따라서 이 부분에 관한 원고의 주장은 위 인정범위(OOOO원) 내에서 이유 있다.

3) Part of the cost of consulting on real estate OO

According to the purport of each of the above evidence and the whole pleadings, the Plaintiff’s OOOOOO that was paid to this NN may be recognized as having been granted to public officials an illegal solicitation. This does not constitute real estate brokerage commission or consulting cost that may be deducted as necessary expenses under tax law. Accordingly, the Plaintiff’s assertion on this part is without merit.

4) The portion of the construction cost for BB, OOO, COOO, D architect design cost, OOOO, and OOOO in total of D architect registration tax.

위 각 증거들과 변론 전체의 취지를 종합하여 인정되는 다음과 같은 사정들, 즉 ① 원고는 이 사건 부동산 중 토지를 매수한 후 그 지상에 공장과 주택을 건축하였고, 당심 감정인 나QQ의 감정 결과에 의하면, 이 사건 부동산 중 건물 부분의 건축비용은 대지조성비를 제외할 경우 OOOO원, 대지조성비를 포함할 경우 OOOO원에 이르고, 원고가 이 사건 부동산을 양도할 당시인 2009. 12. 10.을 기준으로 한 시가도 대지조성비를 제외할 경우 OOOO원, 대지조성비를 포함할 경우 OOOO원에 이르는 점, ② 원고가 DD건축사사무소를 운영하는 정LL에게 교부한 금원 중 OOOO원은 수표로 지급하는 등 일부 금융자료도 확인되는 점, ③ 당심 증인 이GG이 서면 증언에서 BBB와 원고와의 공사계약 체결 경위 및 그 내용, 공사의 진행 과정 및 대금의 정산 등에 관하여 비교적 구체적으로 밝히고 있고 그 내용의 신빙성을 의심할 만한 사정이 발견되지 않는 점 등을 종합하면, 원고가 BBB에게 건축공사비로 OOOO원, CC공업사에게 창호공사비로 OOOO원, 정RR(DD건축사사무소)에게 OOOO원을 각 지급하였던 사실을 인정할 수 있다. 다만 원고가 이 사건 부동산에 관하여 취득세와 등록세 OOOO원을 납부하였다는 점에 관하여는 이를 인정할 아무런 증거가 없다.

Therefore, the plaintiff's assertion on this part is justified within the above scope of recognition (OOO).

5) Illegal under-reported penalty tax

A) Article 47-3(1) of the former Framework Act on National Taxes (amended by Act No. 11124, Dec. 31, 2011; hereinafter the same) provides that “where the tax base reported by a taxpayer falls short of the tax base to be reported under the tax-related Acts, the amount equivalent to 10/100 of the amount calculated by multiplying the calculated tax amount by the ratio of the underreported tax base to the tax base by the calculated tax amount shall be added to the payable tax amount.” Articles 47-3(2)1 and 47-2(2) provides that “In cases where the tax base to be reported by a taxpayer falls short of the tax base to be reported under the tax-related Acts, the amount equivalent to 40/10 of the amount calculated by multiplying the calculated tax amount by the ratio of the underreported tax base to the tax base to be reported under the tax-related Acts (amended by Act No. 11124, Dec. 31, 2011; hereinafter the same shall apply)” in the former Enforcement Decree of the Framework Act provides that “an act of false recording or concealment of books, etc.”

B) In full view of the regulatory structure of Article 47-3 of the former Framework Act on National Taxes, the language and text of each subparagraph of Article 27(2) of the former Enforcement Decree of the Framework Act on National Taxes, and the legal nature of under-reported penalty taxes, where Article 47-3(2) of the former Enforcement Decree of the Framework Act on National Taxes conceals or disguises all or part of the fact that serves as the basis for calculating the tax base or the amount of national tax, it is understood that the imposition and collection of taxes is impossible or considerably difficult, and thus, imposing penalties much higher than those of the general under-reported taxpayers to induce them to faithfully report the tax base. In addition, Article 27(2) of the former Enforcement Decree of the Framework Act on National Taxes provides for the purport that it is difficult to impose taxes on “an unlawful method” under Article 27(2) of the former Enforcement Decree of the Framework Act on National Taxes to constitute “an unlawful method under-reported method” under Article 27(1) of the former Enforcement Decree of the Framework Act on National Taxes, such as “an unlawful method under-reported or under-reported under-reported-13” should be deemed as one of the former Framework Act.

C) As to the instant case, the sum of the design cost OOOO Won paid by the Plaintiff to FF, OOOO Won paid to HJ (KJ), OOOO Won paid to BB, OOOOOOO Won paid to construction work, and design cost OOOO director paid to CC Industries, and DR (DD architect) constitutes actual expenses, and it cannot be deemed that the Plaintiff filed a non-report or under-reported return. Although the Plaintiff asserted that the transfer value should be deducted from the transfer value as necessary expenses, the portion not accepted by the court is merely merely that the Plaintiff failed to submit evidentiary materials or did not accept the Plaintiff’s legal assertion, it is difficult to view that the Plaintiff committed fraudulent or active acts that make it impossible or significantly difficult to impose and collect taxes for the purpose of evading taxes. Accordingly, the Plaintiff’s non-report or under-reported return of additional taxes can not be asserted as reasonable.

6) The calculation of a reasonable amount of tax;

Based on the foregoing, if a reasonable amount of tax is calculated on the basis of the following, such as the details of the tax amount of capital gains tax as stated in the attached Table 3, the main amount of capital gains tax, the amount of additional tax for unfaithful filing, and the amount of additional tax for unfaithful filing. Therefore, on January 4, 2011, the Defendant’s imposition of capital gains tax for the Plaintiff on January 4, 2009 exceeds the amount of OOO in the imposition of the main amount of capital gains tax for the year 2009, the Defendant’s imposition of additional tax for the failure to report capital gains tax for the Plaintiff on November 19, 2012 exceeds the amount of OOO in the imposition of additional tax for the failure to report capital gains tax for the year 209, and the imposition of additional tax for the failure to report shall be revoked, respectively.

3. Conclusion

Therefore, the plaintiff's claim of this case shall be accepted within the above recognition scope, and the remaining claims shall be dismissed for lack of merit. The judgment of the court of first instance shall be dismissed for some different conclusions. Thus, the appeal for the principal income tax of the plaintiff and the additional tax due to the defendant's failure to report and the appeal for the additional tax due to the defendant's failure to report shall be partially accepted and the judgment of the court of first instance shall be modified as above