Suwon District Court 2009Guhap1045 (Law No. 22, 2009)

Cho High Court Decision 2008J306 ( November 10, 2008)

The legitimacy of the assertion that the partial amount was returned from the transfer value of the right of sale

In light of the fact that a relatively detailed written confirmation of the reduction of the transfer price with the Plaintiff is not mentioned in the said written confirmation, the said evidence cannot be believed as it is and there is no other evidence to acknowledge it otherwise.

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.

The judgment of the first instance shall be revoked. The part exceeding 16,936,698 won among the disposition of imposition of capital gains tax of KRW 24,920,290 against the plaintiff on July 1, 2008 by the defendant (the plaintiff reduced the purport of the claim in the trial) shall be revoked.

1. Quotation of judgment of the first instance;

The reasoning of this Court concerning this case is as follows, except for adding the following two judgments to the pertinent part on the matters asserted by the plaintiff in the trial, and therefore, it is consistent with the reasoning of the first instance judgment. Thus, it is accepted in accordance with Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

2. Additional matters to be determined;

A. The assertion

The Plaintiff asserts that even though the Defendant was notified of taxation data on the transfer of the instant parcelling-out right by the Central Tax Office on April 2005, the imposition of the non-payment penalty tax during the said period was contrary to the principle of trust and good faith and constitutes abuse of rights.

B. Determination

(1) As to the assertion that it violates the principle of good faith

In general, in order to apply the principle of trust and good faith to the tax authority's act in tax law relations, first, the tax authority must state the public opinion that is the object of trust to the taxpayer, second, the taxpayer has no reason to be attributable to the taxpayer when the taxpayer trusted that the tax authority's expression of opinion is justifiable, third, the taxpayer must trust the expression of opinion and perform what is the taxpayer's act. Fourth, the tax authority's disposition against the above expression of opinion should result in the violation of the taxpayer's interest by making the disposition against the above expression of opinion (see, e.g., Supreme Court Decisions 98Du2713, Aug. 18, 200; 201Du403, Sept. 5, 2003). Thus, even if the defendant was notified of taxation data on the transfer of the right to sell the instant case, it cannot be viewed that the plaintiff did not express any public opinion on the disposition of this case, without considering the remaining points, the argument against the plaintiff's non-payment of an additional tax without any need.

(2) As to the abuse of rights

The additional tax is a kind of administrative sanction imposed on a taxpayer who violates the obligations prescribed by the tax law without justifiable reasons in order to facilitate the exercise of the right to impose tax and the realization of a tax claim. The additional tax is imposed on the Plaintiff due to a cause attributable to the Plaintiff who failed to file a transfer income tax base without filing a return within the period of time after the Plaintiff transferred the instant sales right. Thus, the disposition imposing additional tax for the erroneous payment during the period of delay, alleged by the Plaintiff

3. Conclusion

Since the judgment of the first instance is justifiable, the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.