Cho Jae-2017-west-2865 ( October 11, 2017)

It is legitimate to apply the rate of additional tax on filing a lawsuit by deeming that the plaintiff's act of filing a report without permission is based on "Fraud or other unlawful acts" and applying the rate of additional tax on filing a lawsuit.

By reporting and paying capital gains tax on the expropriation of land held in title by a third party under the name of the trustee, the tax authority is unable or considerably difficult to impose and collect capital gains tax on the plaintiff who is the actual owner, and the purpose of tax avoidance is changed, and it is based on "Fraud and other unlawful acts."

Article 47-2 of the former Framework Act on National Taxes (Additional Tax on Non-Filing)

Article 27 of the Enforcement Decree of the former Framework Act on National Taxes (Additional Taxes)

2017Gudan7946 Revocation of Disposition of Imposing capital gains tax

○ Kim

a) the Director of the Tax Office

May 14, 2019

June 25, 2019

1. The plaintiff's claim is dismissed.

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

The Defendant’s imposition of capital gains tax of KRW 25,625,310 in 2010 against the Plaintiff on June 2, 2016, each disposition of KRW 228,619,941 in capital gains tax of KRW 57,932,949 in the year 201, and capital gains tax of KRW 228,619,941 in the year 2014 is revoked.

1. Details of the disposition;

A. A. Around August 1997, the Plaintiff acquired 1243 square meters of the same 359-4 square meters (hereinafter “yy Dong 000 square meters”), 124 square meters of the same 364 square meters (hereinafter “yy Dong 364 square meters”), the same 00-1 square meters of the same 600-1, 600-2, and 290 square meters of the same 290 square meters under the Plaintiff’s name of △△△△△△ (hereinafter “y Dong 359-4”), a 360-4 square meters of the same 364 square meters under the same 360-4 square meters of the same 290-2, a 600-1 and 600 square meters of the water supply and water supply, each of which was divided into 360-5,000 square meters under the Plaintiff’s name as the Plaintiff’s driver’s.

(i)y 00 land: expropriation on June 21, 2010

Bridgey 000-8 197 m2) and y 000-1 2090 m2): Expropriation on April 5, 2011

May Dong 009-7 18354m2) Of 2111, 21121 m2: Acceptance on May 12, 2014

C. With respect to the expropriation of the instant land, the Plaintiff reported and paid the transfer income tax of thex,x,x,x,x, andx, belonging to the name of △△△ in 2010, and the x,x,x,x, andx, belonging to the year 2011, and the x,x,x, andx, belonging to the year 2014, respectively, in the name of △△△△△ in relation to the expropriation of the instant land, and the specific details are the same as the “tax amount reported and paid in the name of △△△△ (the same as the “

C. On December 31, 2015, with respect to the expropriation of the instant land, the Plaintiff: (a) filed a return after the deadline for the transfer income tax for the year 2014; and (b) filed a revised return for the transfer income tax for the year 2011; and (c) calculated penalty tax by applying 20% of the general non-reported penalty tax rate to the amount obtained by deducting the amount of tax paid in the name of △△△△△ from the calculated tax amount. In the case of the transfer income tax for the year 2011, the Plaintiff filed a revised return for the transfer income tax by transferring the title of Songpa-gu Seoul Metropolitan Government otel 99-3otel 1308, 1309, 1709, 1711 (hereinafter referred to as “o-dong officetel”); and (b) included the details of the revised return for the transfer income tax for the year 2011, including the details of the revised return for the return for the transfer income tax for the year 20108, 304, 201384.

D. On June 2, 2016, the Defendant imposed on the Plaintiff an amount equivalent to 40% of the total amount of tax calculated by deducting the amount of tax paid in the name of △△△△△, as additional tax on improper non-declaration (Reversion in 2010, 2014) or additional tax on unlawful underreporting (Reversion in 2011), and additionally imposed capital gains tax on the number ofx,x,x,xx, andxx in the year 2010, as follows:

E. The Plaintiff filed an appeal with the Tax Tribunal on the disposition imposing capital gains tax, but was dismissed on October 11, 2017. 5) The Defendant corrected the imposition of capital gains tax for the year 201 by reducing the amount of KRW 4,625,434 ( KRW 69,945,535 - KRW 65,320,101), which is the difference, to the extent that the disposition imposing capital gains tax for the year 201 was reduced by 65,320,101 (hereinafter “instant disposition”).

[Ground of Recognition] Facts without dispute, Gap evidence 1, 3 through 5, Gap evidence 6-1 through 6, Gap evidence 7-1, 2, Eul evidence 1-1 through 3, Eul evidence 3, 4, Eul evidence 6-1, 6-2, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) The Plaintiff reported and paid the transfer income tax in the name of the △△△△△ in relation to the instant land, and again reported and paid the transfer income tax under the name of the Plaintiff, thereby constituting “Fraud and other unlawful acts, which meet the requirements for imposition of the penalty tax or the penalty tax for unlawful underreporting.”

Since there is no other reason, the general and under-reported penalty taxes should be applied.

In the application of the Do governor-free or under-reported penalty tax, it shall be calculated by multiplying the amount obtained by deducting the amount reported and paid under the name of the clerk from the calculated tax amount by the additional tax rate.

Article 18(1) of the Framework Act on National Taxes provides that the transfer income tax belonging to 2010 includes the additional tax due due to the exclusion of the amount deducted from the amount deducted from the amount deducted from the amount deducted from the amount of the scheduled tax return, and the transfer income tax belonging to 2014 includes the additional tax due due to the mistake of the reduction limit (200 million won for five years) under the expropriation.

(b) Related Acts and subordinate statutes: To be listed in attached Form;

C. Whether the additional tax rate for negligent tax returns applied to the instant disposition is legitimate

(1) If a taxpayer commits a fraudulent or other unlawful act to evade a national tax or obtain a refund or deduction, and thereby there is a tax base without filing a tax return, the tax authority imposes an amount equivalent to 40/100 of the amount calculated by multiplying the calculated tax by the ratio of the amount equivalent to the unreported tax base to the amount of tax base. In this case, “Fraud or other unlawful act” refers to a deceptive or other active act which makes it impossible or considerably difficult to impose and collect taxes, and it does not constitute mere failure to file a tax return under the tax law or filing a false tax return without attaching circumstances showing active intent to conceal. In addition, even if a taxpayer gets income through a disguised name, it does not constitute “Fraud or other unlawful act” under Article 26-2(1)1 of the former Framework Act on National Taxes, but it cannot be said that such act constitutes 20,000 if it is considerably impossible to impose and keep a false tax return, such as a false tax return, 20,000 or 17,000,000 won.

In full view of the following facts and all other circumstances recognized by the evidence Nos. 3 and 5-1 through 10 of the evidence No. 5, and No. 7 and the purport of the entire pleadings, it is legitimate for the Defendant to apply the rate of unfair non-declaration of tax or the rate of unfair non-declaration of tax return on the ground that the Defendant’s decision on capital gains tax for the year 2010, 2011 and 2014 against the Plaintiff was based on “Fraud and other unlawful acts.” Therefore, this part of the Plaintiff’s assertion to this purport is rejected.

① It is difficult to believe the Plaintiff’s assertion as to the circumstances leading to title trust. The Plaintiff asserted to the effect that, on the grounds that the Plaintiff acquired the instant land under the name of the Plaintiff, the Plaintiff, an executive officer of a financial company, provided the Plaintiff’s debt security to the Plaintiff’s husband. However, there is no evidence to acknowledge it.

Rather, at the time of acquiring the instant land, the Plaintiff, in addition to a part of the z-dong officetels, owned several real estate under his own name, such as 138 forest land and 22986 square meters, 00-1 large 941 square meters, such as 00-6 large 941 square meters, and 00-6 large 941 square meters, which was one after acquiring the instant land. Around December 2, 2000, the Plaintiff acquired z-dong 5-dong 340-35 ground buildings in Jung-gu, Seoul, Jung-gu, Seoul, and z-dong 208 squaretel around June 203. Unlike the instant land, it is difficult to obtain a statement on the reason that the said real estate could have been acquired in the name of the Plaintiff. Moreover, the Plaintiff’s husband, around 202, acquired a large number of real estate in the name of the △△△△△ in the name of the Plaintiff.

The land of this case was also expropriated in the past. There was a circumstance in which it can be seen that the intention was to avoid the tax burden due to holding a large number of real estate assets in title trust to △△△△△.

② As the instant land was title trust in the name of △△△△, the Plaintiff obtained a result of partly avoiding capital gains tax pursuant to the instant land expropriation. In other words, in the case of capital gains tax accrued in 2011, the Plaintiff paid the land expropriated on April 5, 201 among the instant land and the capital gains tax of the Gavis under the name of the Plaintiff and Seo-gu, respectively, thereby resulting in the Plaintiff’s double application of the basic deduction, thereby evading the tax amount of at least 14,932,718 won.

③ After the land was expropriated, the Plaintiff completed active action as if △△△ was the actual owner of the instant land by reporting the transfer income tax under the name of Seocho-gu and paying it in its name. Accordingly, it is reasonable to deem that it was impossible or considerably difficult for △△△△ to impose and collect the transfer income tax on the Plaintiff, who is the actual owner, by providing the tax authority with the cause of misleading the actual owner of the instant land.

④ Although it appears that the tax amount imposed even if the Plaintiff reported and paid the capital gains tax for the year 2010 for which the Plaintiff reported and paid in the name of △△△△△, and the capital gains tax for the year 2014 was similar to the amount imposed even if the Plaintiff reported and paid in the name of △△△△, it is difficult to conclude that the act of reporting and paying the capital gains tax for the year 2010 and the capital gains tax for the year 2014 did not have any purpose of tax avoidance in light of the fact that the title trust of the instant land itself took place, and subsequent act of accepting the instant land and reporting and paying the capital gains tax in the name of △△△△△△ was

D. Whether the reported and paid tax amount should be deducted in the name of the △△△△△

(1) Article 47-2(3) and Article 47-3(3) of the former Framework Act on National Taxes (amended by Act No. 11124, Dec. 31, 201) stipulate that the pertinent amount of tax shall be deducted from the calculated tax for the purpose of the application of an unfair non-declaration of tax or an unfair under-declaration of tax. In addition, Article 47-2(5) of the former Framework Act on National Taxes (amended by Act No. 12848, Dec. 23, 2014) provides that the said amount of tax shall be deducted from the calculated tax for the purpose of calculating the amount of tax for interim prepayment, the amount of tax for interim prepayment, and the amount of tax for interim prepayment, which is prescribed by Presidential Decree when the said amount of tax is paid. Article 47-2(3) and 47-3(3) of the former Enforcement Decree of the Framework Act on National Taxes (amended by Presidential Decree No. 25751, Nov. 19, 2014).

Since it is apparent that the capital gains tax reported and paid by the Plaintiff in the name of △△△△△, a trustee, does not correspond to the "income tax withheld under the Income Tax Act", when applying the illegal non-declaration penalty tax or the illegal underreporting penalty tax on the capital gains tax for the year 2010 and 2011, the tax amount returned and paid in the name of △△△△△ shall not be deducted. In applying the additional tax on the illegal non-declaration penalty tax under the former Framework Act on National Taxes (amended by Act No. 12848, Dec. 23, 2014), the transfer income tax amount reported and paid in the name of △△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△

When applying the illegal non-reported tax on the transfer income tax, the tax amount reported and paid in the name of the △△△ shall not be deducted.

Article 22(1) of the Civil Act provides that “The amount of the capital gains tax reported and paid in the name of △△△△△ shall be deducted in the disposition of this case by the Defendant, and the amount of the capital gains tax reported and paid in the name of △△△△△ shall be deemed lawful.” Thus, the Plaintiff’s assertion to this different purport shall not be accepted.

(e) Whether Article 18 (1) of the Framework Act on National Taxes is violated;

Article 18 (1) of the Framework Act on National Taxes provides that when interpreting and applying tax-related Acts, property rights of taxpayers should not be unfairly infringed in light of the equity of taxation and the purpose of the pertinent provision.

However, as seen earlier, in the case of capital gains tax for the year 2010 and 2014, the Plaintiff reported and paid the capital gains tax for the expropriation of the instant land held in title by a third party under the name of the trustee, thereby making it impossible or considerably difficult for the tax authority to impose and collect capital gains tax on the Plaintiff, who is the actual owner, and thus, it is deemed as a non-report by "Fraud and other unlawful acts". Thus, in imposing capital gains tax on the Plaintiff, it cannot be deemed that the instant disposition imposing an unfair non-reported penalty tax pursuant to the relevant Acts and subordinate statutes violates the taxation equity or unfairly infringing the taxpayer’s property right.

On the contrary, the Plaintiff’s assertion that, in the case of the transfer income tax for the 2010-year transfer income tax, the amount of deduction for the transfer income tax that was applied at the time of filing and paying in the name of △△△△, was de facto underreporting as much as the relevant amount. In the case of the transfer income tax for the 2014-year transfer income tax, the amount of deduction for the transfer income tax has been excessively reported as 49,531,682 won, excluding the reduction and exemption limit for the expropriation, and thus, the Plaintiff’s assertion that the amount of reduction

3. Conclusion

Thus, the plaintiff's claim is dismissed as it is without merit.

1) On April 7, 2010, it was divided into land x-dong 00-4.

2) The remaining 1500 shares were accepted on April 25, 2012.

3) On April 7, 2010, from land x-dong 000 to x-dong 000, x-dong 21121 square meters were divided. On December 26, 2012, the land was once again divided into 100-10 square meters and 2767 square meters was x-dong 00-7 square meters.

4) 220/2121 shares were accepted on April 25, 2012; 3526.89/21/2121 shares were accepted on March 19, 2013; and remaining 5464.9/21 of shares were accepted on April 28, 2016.

5) Some of the real estate held in title by the Plaintiff to △△△ in 2012 and 2013 were accepted in BB in 2012 and 2013, the Plaintiff reported and paid the capital gains tax in the name of △△△△, and the Defendant additionally imposed the capital gains tax on the Plaintiff in 2012 and 2013. The Plaintiff filed an appeal against each disposition of capital gains tax in addition to the instant disposition. The imposition disposition of capital gains tax in 2012 and 2013 was revoked, and the appeal for the instant disposition was dismissed.

6) Where separate payments are made, capital gains tax for the instant officetel 35,53,100 (Evidence 7) and capital gains tax for the instant officetel 127,271,070, total of KRW 162,854,170, among the instant land, shall be calculated, while capital gains tax for the instant officetel 17,756,888, as seen in the foregoing 1. D., as seen in the foregoing 1.4.

7) In the case of the transfer income tax for the year 2010, there was only the amount of tax to be paid additionally to the Plaintiff because it was not subject to the deduction of the scheduled tax return, which was applied when returned and paid in the name of Seodaemun, and in the case of the transfer income tax for the year 2014, the transfer income tax for the transfer income tax for the year 2014, which was paid in the name of Seodaemun-do, and the return of title trust was made by mistake