양도차익 계산에 있어서 양도가액에서 공제할 필요경비의 범위와 입증책임[일부패소]
Suwon District Court 2007Guhap10519 ( October 08, 2008)
National High Court Decision 2007J 2752 (Law No. 13, 2007)
In calculating gains on transfer, the scope of necessary expenses to be deducted from the transfer value
The retaining wall construction cost, land suspension cost, and brokerage fee, which are claimed as necessary expenses for capital gains, are not objectively proved to be the basis for payment, and the construction design cost and the installation cost of measuring instruments not recognized as necessary expenses are not subject to necessary expenses deduction, but the acquisition value is calculated under the below.
The contents of the decision shall be the same as attached.
1. The part against the plaintiff falling under any of the following subparagraphs among the judgment of the court of first instance shall be revoked:
2. The Defendant’s disposition of imposition of capital gains tax of KRW 115,575,903 for the year 2004 against the Plaintiff on April 4, 2007, exceeding KRW 90,975,183, shall be revoked.
3. The plaintiff's remaining appeal is dismissed.
4. The total costs of the lawsuit shall be five minutes, and four minutes shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.
Purport of claim and appeal
The judgment of the first instance court is revoked. On April 4, 2007, the defendant imposed a transfer income tax of KRW 115,575,903 on behalf of the plaintiff in the year 2004.
1. In addition to the reasoning stated in the court's explanation concerning this case, the part on whether the actual acquisition price of each of the lands of this case is KRW 180,000,000 is determined by the court's decision of the first instance except for the part on the reasoning of the court's explanation as to this case's case's, it shall be accepted as it is in accordance with Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act, and Article 420 of the Civil Procedure Act.
2. (1) Whether the actual acquisition value of each of the lands of this case is KRW 180,00,000.
갑 제4 내지 6호증, 14호증(각 가지변호 포함)의 각 기재 및 당심 증인 이♈♈의 증언에 변론의 전 취지를 종합하면, 원래 원고의 부친인 이▼▼과 이♈♈가 노☆☆로부터 이 사건 각 토지를 180,000,000원에 매수하기로 하였으나 계약이 무산된 사실, 이에 원고가 노☆☆에게 매매대금 180,000,000원을 지급하고 이 사건 각 토지를 대신 매수하였으나 다만 매매계약서를 작성할 당시 실제 취득가액보다 낮은 143,100,000원을 매매대금으로 기재한 사실이 인정된다.
Therefore, the Plaintiff’s assertion on the acquisition value portion is reasonable, and the transfer income tax for the year 2004, which was calculated by reflecting it, is KRW 90,975,183 (the calculation details are as shown in the attached Form), and the portion exceeding the above legitimate transfer income tax amount among the disposition of this case should be revoked.
3. Conclusion
Therefore, the plaintiff's claim of this case is justified within the scope of the above recognition, and the remaining claims are dismissed without merit. Since the judgment of the court of first instance is partially unfair with the conclusion, it is so decided as per Disposition by the assent of all participating Justices to revoke the part against the plaintiff, which falls under the part to be revoked below, and to revoke the part exceeding KRW 90,975,183 of the above legitimate capital gains tax in the disposition of this case.