법률의 한도를 초과한 부동산중개수수료도 필요경비로 공제됨[국패]
Seoul Administrative Court 2008Gudan5097 (2009.05)
early 2007west3044 ( December 26, 2007)
over the limit of the law, the real estate brokerage commission is also counted as the necessary expense.
Even in cases where real estate brokerage fees are paid in excess of the limit prescribed by the Act, the deduction of necessary expenses for capital gains tax is based on the amount actually paid under the principle of substantial taxation, and thus excluded from necessary expenses is unreasonable.
The contents of the decision shall be the same as attached.
Article 97 (Calculation of Necessary Expenses in Transfer Income Tax)
1. The defendant's appeal is dismissed.
2. The costs of appeal shall be borne by the Defendant.
The Defendant’s disposition of imposition of capital gains tax of KRW 138,329,280 for the Plaintiff on April 01, 2007, in excess of KRW 38,911,285, shall be revoked.
Purport of appeal
The judgment of the first instance shall be revoked.
The plaintiff's claim is dismissed.
1. The reasons presented by the court in this decision are the same as the reasons for the judgment of the court of first instance except for the following matters to be determined in addition to those to be stated below, and thus, they shall be quoted in accordance with Article 8(2) of the Administrative Litigation Act and
The defendant asserts that the part received by AA Line in excess of the limit set by law among the brokerage commission fee of KRW 25 million received from the plaintiff cannot be viewed as a legitimate brokerage commission, so it shall not be included in the necessary expenses related to the transfer of the land of this case.
Article 20(3) of the former Real Estate Brokerage Act (wholly amended by Act No. 7638, Jul. 29, 2005; Act No. 7638 of the Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions) which had been enforced at the time when the said brokerage commission was paid between the Plaintiff and AA ship provided that matters necessary for the brokerage commission and the limit of actual expenses shall be determined by the Ordinance of the Special Metropolitan City, Metropolitan City, or Do within the scope prescribed by the Ordinance of the Ministry of Construction and Transportation. Article 23-2(1) of the former Enforcement Rule of the Real Estate Brokerage Act (amended by Ordinance No. 411, Nov. 29, 2004); Article 20(3) of the former Enforcement Rule of the Real Estate Brokerage Act (amended by Ordinance No. 411, Nov. 29, 2004; Ordinance No. 20(3) of the Ministry of Construction and Transportation) provided that each client shall receive the brokerage commission
Thus, the above brokerage commission that AA Line receives from the Plaintiff exceeds the limit prescribed by the above Act and the Enforcement Rule, but the deduction of necessary expenses is in accordance with the actual amount paid under the principle of substantial taxation (see Supreme Court Decision 91Nu1059 delivered on April 26, 1991). Thus, the Defendant’s above assertion is rejected.
2. If so, the plaintiff's claim is justified, and the judgment of the court of first instance is just, and the defendant's appeal is dismissed as it is without merit, and it is so decided as per Disposition.