District Court-2016-Gu -6328 ( December 13, 2017)

Whether the plaintiff recognizes the necessary expenses of the amount claimed as brokerage commission, and if the transfer income tax of the transferor was paid by the transferor on the pre-sale basis, whether the already paid tax deduction is made.

The amount paid by the Plaintiff is merely the cancellation of provisional seizure and cannot be deemed as a brokerage commission for the transfer of the real estate of this case, and thus, it cannot be deducted from the necessary expenses. Even if the Plaintiff paid the transfer income tax, etc. imposed in the name of the former clan as a substitute for the Plaintiff, it shall not be allowed to deduct the already paid tax amount in the disposition of this case against the Plaintiff (as

Article 97 of the Income Tax Act, Article 163 of the Enforcement Decree of the Income Tax Act

2018Nu32202 Revocation of disposition of imposing capital gains tax

LAA

***The Director of the Tax Office

Suwon District Court Decision 2016Gudan6328 Decided December 13, 2017

June 25, 2018

July 18, 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 89,282,520 (including additional tax) on the Plaintiff on November 28, 2015 shall be revoked.

1. Quotation and revision of judgment of the first instance;

The reason why the court is to use this case is as stated in the reasoning of the judgment of the court of first instance, except in the following cases from 5th to 6th 10th of the judgment of the court of first instance. Thus, this Court shall accept it as it is in accordance with Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

[Supplementary Use]

Article 47-2(2)1 of the former Framework Act on National Taxes (amended by Act No. 11124, Dec. 31, 2011) refers to a failure to file a tax base return by illegal means, which is a requirement for an unfair non-declaration penalty tax under Article 47-2(2)1 of the former Framework Act on National Taxes (amended by Act No. 11124, Dec. 31, 201); or a failure to file a tax base return by an affirmative act, such as making it difficult to discover a taxation requirement or forging a false fact, which results from the purpose of tax evasion, such as evading a progressive tax rate and applying the provisions on losses brought forward (see Supreme Court Decision 2013Du12362, Nov.

In light of the following circumstances, the Plaintiff’s non-declaration of transfer income tax is deemed to have derived from the purpose of evading tax, as it was obtained by an affirmative act, such as making it difficult to discover a taxation requirement or forging or withdrawing false facts. Therefore, there is no illegality in the imposition of additional tax on non-declaration of transfer income tax in the instant disposition. The Plaintiff’s assertion on this part is without merit.

After purchasing the instant real estate from the instant clan, the Plaintiff, the seller, and the seller seeking profits from the unregistered pre-sale, entered into a direct sales contract with B and CC. Furthermore, the Plaintiff had the seller complete the registration of ownership transfer of the instant real estate directly from BB and CC, the seller of the instant clan. Meanwhile, the Plaintiff did not file a preliminary or final return on capital gains tax in its name. Such act constitutes a deceptive scheme or other active act that makes it difficult or considerably difficult to impose and collect taxes (see Supreme Court Decision 2013Du10519, Oct. 11, 2013).

In relation to the unregistered pre-sale of the instant real estate, the Plaintiff made an investigation by an investigative agency, and stated to the effect that “In the event that the instant real estate is registered and disposed of by way of the fact, it would pay taxes to the family council and pay taxes to the third party, and if the arbitr appears, the Plaintiff sold the instant real estate to the third party, 14 members of the lower court and the property disposal committee at the time.” Even according to the Plaintiff’s statement, it is apparent that the Plaintiff’s pre-sale of the instant real estate was for tax evasion.

On May 2015, the Plaintiff received a summary order of KRW 5 million (Korean Government District Court 2015 High Court ****) due to the violation of the Act on Special Measures for the Registration of Real Estate, and the said summary order became final and conclusive as it is. The crime of the above summary order is that “The Plaintiff did not complete the registration of ownership transfer in its name for the purpose of evading tax imposition, even though it entered into a contract with the Plaintiff to sell the said real estate from the instant clan to the non-B and one other.”

2. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is just as it is concluded, and the plaintiff's appeal is dismissed.