early 2010west2524 ( December 24, 2010)

The embezzlement of employees to pay capital gains tax does not constitute grounds for exemption from penalty tax.

Even if the Plaintiff’s employee embezzled the money to be paid as capital gains tax and did not report and pay capital gains tax, the Plaintiff’s liability for failure to perform his/her duties is borne by the Plaintiff and there is no objective data as to whether the employee incurred losses to the extent that he/she could not pay capital gains tax due to embezzlement, and thus,

2011Gudan7642 Revocation of Disposition of Imposing capital gains tax

OraA

○ Head of tax office

July 12, 2011

August 17, 2011

1. The plaintiff's claim is dismissed.

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

On February 11, 2010, the Defendant revoked the disposition of imposition of KRW 173,84,935 on the return and payment of capital gains tax against the Plaintiff.

1. Details of the disposition;

A. On May 31, 2002, the Plaintiff acquired and owned the DBCC DD 412-3 large 390.7 and its ground buildings (E buildings, hereinafter referred to as “the instant real estate”) and transferred on January 23, 2008.

B. On September 17, 2009, the Plaintiff filed an application for reduction of or exemption from additional tax on the ground that the transfer value was KRW 4.55 million, and the acquisition value was KRW 2,979,74,114, and that “an employee who was delegated by the Plaintiff with the report of the transfer income tax from the Plaintiff did not report the transfer income tax within the due date because he embezzled and absconded the transfer income tax amount and did not report it within the due date.”

C. Accordingly, on February 11, 2010, the defendant issued to the plaintiff the acquisition value of the real estate in this case as KRW 2,060,438,364, and issued additional tax 185,362,428 to the plaintiff, and corrected and notified capital gains tax of KRW 748,646,190 for the transfer income tax of 208, and thereafter deducted and corrected the acquisition value as KRW 2,431,438,364 for the first time, and the remaining reported and incomplete penalty tax of KRW 173,884,935 for the second time (hereinafter referred to as "the disposition in this case").

[Ground of Recognition] The facts without dispute, Gap evidence 5 to 8, and Eul evidence 1 (including each number), and the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The plaintiff asserts that the disposition of this case, which had been reported differently from that of the following, by embezzlement of the capital gains tax by an employee, is illegal. In other words, the embezzlement of the plaintiff's employee constitutes "a light that has been stolen under Article 2 (1) 1 of the Enforcement Decree of the Framework Act on National Taxes (amended by Presidential Decree No. 22038 of Feb. 18, 2010, hereinafter "Enforcement Decree") or a reason corresponding to theft under Article 2 (1) 6 of the same Act. (2) The plaintiff also constitutes "additional payment" under Article 2 (1) 3 of the Enforcement Decree because the plaintiff suffered a serious loss due to embezzlement of employees, and constitutes "additional payment" under Article 2 (1) 5 of the Enforcement Decree. (3) In addition, it constitutes a case where the extension of the deadline is necessary considering the taxpayer's status, circumstances, etc., and the taxpayer's non-performance of the duty under Article 48 (1) of the Framework Act on National Taxes."

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

(1) The Plaintiff transferred the instant real estate on January 23, 2008, and ordered Han Chang-soo, an employee on May 26, 2009, to report and pay the transfer income tax.

(2) However, the FF did not report and pay the transfer income tax on the instant real estate until May 31, 2009, which is the statutory due date of return.

(3) On September 2009, the Plaintiff filed a complaint against KF with the charge of embezzlement, etc. with the knowledge that KF would pay KF as capital gains tax for the instant real estate amounting to KRW 410 million, including KRW 410 million, and KF would be sentenced to imprisonment for four years (Seoul Eastern District Court Decision 2009Gohap394, Seoul High Court Decision 2010No479, Seoul High Court Decision 2010No479), and it became final and conclusive around that time.

[Ground of Recognition] The above evidence, Gap evidence 2, 4, and 9 (including each number), and Eul evidence 2, and the purport of the whole theory

D. Determination

Under the tax law, in order to facilitate the exercise of taxation rights and the realization of tax claims, if a taxpayer violates a tax return and tax liability under the law without justifiable grounds, administrative sanctions shall be imposed as prescribed by the law, and if there is any justifiable reason not attributable to the taxpayer’s failure to perform tax obligations (see, e.g., Supreme Court Decision 9Du3515, Aug. 20, 199). In the instant case, it can be recognized that the Plaintiff’s failure to report and pay the transfer income tax to the Korea FF, who is an employee, and that the Plaintiff did not perform tax due to embezzlement of the amount of capital gains tax, but the FF ordered the Plaintiff to report and pay the transfer income tax to the FF, but the following circumstances can be recognized by the above evidence, and, on the other hand, the Plaintiff did not have any other reason to recognize the Plaintiff’s failure to report or pay the transfer income tax due to the Plaintiff’s failure to perform tax under the tax law, and the Plaintiff’s failure to report or pay the capital gains tax to the FFFF, and the Plaintiff’s own intent.

3. Conclusion

Then, the plaintiff's claim of this case is dismissed as it is without merit, and it is decided with the order.