부동산매매계약을 해약하면서 지급한 위약금을 필요경비로 인정할 수 없음[국승]
Early High Court Decision 2010Du1230 ( October 31, 2010)
A penalty paid upon cancelling a real estate sales contract shall not be deemed necessary expenses.
As long as penalty cannot be the expenses directly incidental to the transfer of property, even if the penalty was paid based on special circumstances, the disposition denying the penalty as necessary expenses is lawful, since it only constitutes a causal relationship with the transfer of real estate, and it does not constitute necessary expenses.
2010Gudan1870 Revocation of Disposition of Imposing capital gains tax
NewA
○ Head of tax office
December 23, 2010
February 24, 2011
1. The plaintiff's claim is dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
The Defendant’s disposition of imposition of capital gains tax of KRW 53,644,740 for the year 208 against the Plaintiff on January 11, 2010, in excess of KRW 21,251,280, shall be revoked.
1. Details of the disposition;
A. On January 22, 2008, the Plaintiff concluded a sales contract with ○○○○○○○-dong 374-7 site 426.4 square meters to sell the pertinent real estate (hereinafter “the instant real estate”) to Na for KRW 1,970,000,000. However, the Plaintiff notified ○○○ head of the Gu of the fact that there was a public parking lot construction plan for the revitalization of the said real estate, and agreed to cancel the said sales contract by mutual agreement with Na and pay KRW 105,000,000 for the said real estate separately from 140,000,000 for the down payment.
B. After that, on September 12, 2008, the instant real estate was expropriated in 1,826,362,000 won to the ○○○○ Office. On November 30, 2008, the Plaintiff reported on November 30, 2008 the amount equivalent to the said penalty to be included in the necessary expenses, and paid KRW 21,251,280.
C. On January 11, 2010, the Defendant denied the penalty as necessary expenses, and corrected and notified the Plaintiff of KRW 32,393,460 for the transfer income tax reverted to the year 2008.
[Reasons for Recognition] In the absence of dispute, each entry of Gap evidence 1 to 6, Eul evidence 1 to 8
2. Whether the instant disposition is lawful
The Plaintiff asserted that the amount of penalty should be recognized as necessary expenses under the principle of substantial taxation, since there was a proximate causal relationship between the transfer of real estate of this case, which was made by means of payment of penalty and consultation, and thus, it is reasonable to recognize the amount of penalty as necessary expenses.
According to Article 97 of the Income Tax Act, when calculating gains on transfer of a resident, necessary expenses to be deducted from the transfer value shall be limited to acquisition value, capital expenses, etc. prescribed by Presidential Decree, such as transfer value, capital expenses, etc. In order to recognize the penalty of this case as necessary expenses, it shall fall under any of the necessary expenses. First of all, acquisition value or capital expenses are not likely to fall under the necessary expenses, and transfer expenses are limited to essential and direct expenses incidental to the transfer, and insofar as the penalty for breach of contract cannot be directly incidental to the transfer, the payment of penalty in this case is based on the special circumstance that the Plaintiff incurred to the Plaintiff, and shall not be deemed as necessary expenses.
Therefore, there is no violation of the disposition of this case, which denied the penalty paid by the Plaintiff as the necessary expenses for the transfer of real estate.
3. Conclusion
Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.