Incheon District Court 2009Gudan1263 (No. 17, 2009)

early 209 middle 1620 (209.03)

The act of giving credibility to a false report constitutes fraud or other improper means.

In order to grant credibility to a false declaration while underreporting the reported value and to conceal the actual transaction value, the preparation and submission of a false double contract in which the sale price is underfinite is underfinite to constitute a "Fraud or other fraudulent act that significantly makes it difficult to impose and collect taxes by actively deception."

The contents of the decision shall be the same as attached.

1. The plaintiff's appeal is dismissed.

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

Purport of claim and appeal

The judgment of the first instance shall be revoked. The defendant's imposition of capital gains tax of KRW 12,224,700 against the plaintiff on March 3, 2009 shall be revoked.

1. Circumstances of the disposition;

The following facts are not disputed between the parties, or may be recognized by considering the overall purport of the theory in Gap evidence Nos. 1, 5, 7, 9, and 12:

A. On July 27, 200, the Plaintiff acquired the instant apartment at KRW 73,500,000 from the purchase price, and transferred the apartment at KRW 115,000,00 to the Trade UnionB on August 20, 2002.

B. On August 23, 2002, the Plaintiff filed a preliminary return on the tax base of capital gains tax with the acquisition value of the apartment of this case as KRW 73,500,000, and the transfer value as KRW 75,000,000.

C. On March 3, 2009, the Defendant: (a) applied the provisions of the former Income Tax Act (amended by Act No. 6781, Dec. 18, 2002; hereinafter referred to as the “former Income Tax Act”) to the Plaintiff, the acquisition value of the instant apartment as KRW 73,50,000, and the transfer value as KRW 115,000,00, and imposed a disposition of imposition of KRW 12,224,700, which reverts to the year 2002 (hereinafter referred to as the “instant disposition”).

2. Whether the disposition is proper; and

A. The plaintiff's principal

(1) The instant disposition was unlawful after the lapse of five years from the time when the Defendant was able to impose capital gains tax on the Plaintiff.

(2) In order to repay debts, the Plaintiff entrusted all the administrative affairs relating to the disposal of the instant apartment as well as the report of capital gains tax to the real estate intermediary. The Plaintiff was aware that the sales contract was submitted differently from the fact at the time of the preliminary return of capital gains tax base, which was subject to the instant disposition. Therefore, it is unreasonable to apply the exclusion period for imposition of ten years to the Plaintiff, who did not participate in the report of capital gains tax, and did not have any intention to submit a false double sales contract or to evade taxes.

(3) The transfer income tax on the transfer of apartment of this case should be calculated as the standard market price at the time of transfer under the Income Tax Act applied at the time of transfer, and the disposition of this case based on the actual transaction price is unlawful.

(b) Related statutes;

The entries in the attached Table-related statutes are as follows.

C. Determination

(1) Whether the instant disposition was taken within the exclusion period of imposition

(A) Article 26-2(1)1 of the Framework Act on National Taxes provides that the limitation period for the right to impose national taxes shall be ten years from the date on which national taxes can be imposed in cases where a taxpayer evades a tax as a "Fraud or other unlawful act". Thus, in a tax that is determined on the tax base by the tax amount, the taxpayer’s filing of a false return is granted credibility by underreporting the reported value and submitting a false contract in which the sales price is insufficiently stated in order to conceal the actual transaction amount constitutes a "Fraud or other unlawful act that significantly makes it difficult to impose and collect taxes as an active deception (see Supreme Court Decision 2004Do2391, Jun. 11, 2004).

(B) According to the following facts: (a) on August 23, 2002, when the Plaintiff made a preliminary return on the transfer value of the apartment of this case at KRW 75,00,000,000, the Plaintiff submitted to the Defendant on August 23, 2002 the certificate of real estate transaction in the name of the purchaser and the certificate of personal seal impression to confirm the contents of the above contract; (b) according to the above facts of recognition, the Plaintiff’s act constitutes “Fraud or other unlawful act significantly difficult to impose and collect taxes as a positive deception against the Defendant; and (c) the Defendant’s disposition at issue was lawful within the exclusion period of imposition of capital gains tax when the Defendant could impose capital gains tax on the Plaintiff.

(C) Therefore, the Plaintiff’s above assertion is without merit.

(2) have jurisdiction over the legal relations following the acting as a real estate broker in filing a transfer income tax.

(A) In full view of the written evidence No. 14, the Plaintiff recognized the fact that the Plaintiff delegated all the affairs concerning the disposal of the apartment of this case and the report of transfer income tax to KimCC, among real estate, to an individual, among real estate. In the tax return method such as transfer income tax, the act of taxpayer’s filing tax return constitutes a public law act by a private person as a legal requirement which generates a tax claim obligation relationship, and the act of private person’s public law is possible by proxy except where the act of representation is not permitted by law or is not permitted by nature. Accordingly, KimCC reported transfer income tax on the transfer

(B) On the other hand, since the general principles of the Civil Act are applied to legal relations concerning the representation of filing tax base of capital gains tax, the issue of whether a doctor's defect or any circumstance was known shall be determined as a proxy's standard in accordance with Article 116 (1) of the Civil Act. As long as the KimCC submitted a false double sale contract with the knowledge of the fact that it is different from the actual transaction amount in filing a preliminary return of capital gains tax, so long as it submitted a false double sale contract with the knowledge of the fact that it is not clear that

(C) Therefore, the Plaintiff’s above assertion is without merit.

(3) As to the adequacy of tax amount calculated based on actual transaction price

(A) As seen earlier, the Plaintiff’s preliminary return on the tax base of capital gains tax on the transfer of apartment of this case based on the actual transaction price, not the standard market price, shall be calculated according to the actual transaction method under Article 96(1)6 of the former Income Tax Act.

(B) Under the proviso of Article 114(4) of the former Income Tax Act, the Defendant confirmed that the real value of the Plaintiff’s return is KRW 115,00,000, and then issued the instant disposition to the Plaintiff based on the actual transaction price confirmed, and thus, the instant disposition was lawful.

(C) Therefore, there is no reason for the plaintiff's chief executive officer.

3. 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, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.