재건축사업의 원활한 진행에 협조하는 대가로 받은 경우 기타소득인 ’사례금’에 해당함[국승]
Early High Court Decision 2009J3587 ( December 17, 2009)
In case of receiving the compensation in return for the smooth progress of the reconstruction project, the compensation for other income shall be applicable to the "compensation for other income."
Since money is deemed to have been paid as a case of the transfer of ownership of real estate to a reconstruction association and the cooperation for a reconstruction project to smoothly implement the reconstruction project, the disposition to impose the comprehensive income tax on the money as other income of the "compensation" is legitimate.
2010Guhap1259 global income and revocation of disposition
Maximum XX
O Head of tax office
May 12, 2011
May 26, 2011
1. All of the plaintiffs' claims are dismissed.
2. The costs of lawsuit are assessed against the plaintiffs.
The disposition imposed by the director of the Defendant Incheon District Tax Office on the Plaintiff LB on July 9, 2009 at the global income tax of 56,262,550 won for the year of 207, and the disposition imposed on Plaintiff GamCC on January 8, 2009 at the global income tax of 35,403,730 won for the year of 207, and the disposition imposed by the director of the Defendant DDD Tax Office on Plaintiff HongE at the global income tax of 207, April 1, 2009, shall be revoked.
1. Details of the disposition;
(a) Plaintiff B. 2: GH 451-64, 169 square meters and its ground buildings (hereinafter referred to as “1 real estate”); Plaintiff ParkCC 451-62 and 152 square meters and its ground buildings (hereinafter referred to as “2 real estate”) were owned by Defendant 2, 2, 30, 50, 27, 30, 50, 27, 50, 27, 206, 27, 30, 207, 50, 207, 207, 206, 30, 50, 207, 207, 206, 50, 207, 207, 206, 30, 207, 206, 30, 207, 206, 30, 206, 207, 207, 206, 27, 27,
[Grounds for recognition] Evidence Nos. 1, 2, 4, 19, 21, 22, 24, 32, 33, 34, 35, 49, 50, 51 (including branch numbers if any), Eul evidence Nos. 13 through 15, and the purport of the whole pleadings
2. Whether the instant disposition is lawful
A. The plaintiffs' assertion
The Plaintiffs, while selling the instant real estate to the reconstruction association, set the sales price of KRW 835,255,460, KRW 612,878,200, KRW 571,012,250, and all of the said money at that time, were known to be paid to the reconstruction association. Of these, the instant money paid by KK to the reconstruction association on behalf of the reconstruction association was paid part of the purchase price of the instant real estate, and the instant disposition that the Defendants imposed the comprehensive income tax by deeming the instant money as an honorarium, not as capital gains, is unlawful.
B. Relevant statutes
C. Facts of recognition
(1) On December 4, 2004, the reconstruction association filed a lawsuit against the plaintiffs under the Incheon District Court 2004Da102142, 2004Gadan102159, 2004Gadan102111 (hereinafter “instant civil lawsuit”) claiming for the registration of ownership transfer while exercising the right to demand sale under Article 48(4) of the Act on Ownership and Management of Condominium Buildings.
(2) On February 22, 2007, when the lawsuit was pending, the reconstruction association deposited KRW 335,068,200 of the value of the second real estate in this case and KRW 318,502,00 of the value of the third real estate in this case as the principal deposit, and deposited KRW 408,07,200 of the value of the first real estate in this case as the principal deposit. On August 31, 2007, the reconstruction association deposited KRW 408,07,200 of the value of the first real estate in this case as the principal deposit, but the Plaintiffs refused to receive it on the ground that the amount was insufficient.
(3) On the other hand, on August 22, 2007, the Incheon District Court rendered a judgment dismissing the claim of the reconstruction association for the reason that there is no evidence to acknowledge that the reconstruction association lawfully exercised the right to demand sale in the lawsuit of claiming the registration of ownership transfer against the members of Han L, a member of the reconstruction association (the Incheon District Court Decision 2005Kadan60849).
(4) At the time of the commencement of the reconstruction project, KK was unable to proceed with the reconstruction project due to the instant civil litigation, etc. between the plaintiffs and the reconstruction association, but it was likely that it would have to resume the reconstruction resolution due to the extinguishment of the sale claim. On September 20, 2007, KK received an agreement from the plaintiffs to transfer the ownership of the instant real estate to the reconstruction association, but on September 20, 2007, KK paid KRW 33,19,050 to the plaintiffs, and at the same time, K paid KRW 216,691,80 to the plaintiffs Y and 196,958,000 to the plaintiffs Y.
(5) Accordingly, on September 20, 207, KK deducted KRW 33,19,050, which remains after deducting KRW 427,178,260, income tax of KRW 85,435,650, resident tax of KRW 8,543,560, and KRW 333,19,050, which remains after deducting KRW 55,562,00, resident tax of KRW 5,556,200, and KRW 216,691,80, which remains after deducting KRW 50,50,000, income tax of KRW 27,810,510,250, which is money of this case, as withholding tax, from KRW 35,50,00, KRW 5050, KRW 505,05,00, and KRW 216,56,800, which remains after deducting the remaining amount from withholding tax.
(6) The reconstruction association withdrawn the civil lawsuit of this case on September 20, 2007, and completed the registration of ownership transfer on September 27, 2007. Meanwhile, each sales contract prepared between the plaintiffs and the reconstruction association attached at the time of the application for the registration of ownership transfer of the real estate of this case stated that the total rebuilding cost shall be paid to the plaintiffs in lump sum as the purchase price for each deposit set forth in paragraph (2).
(7) After that, on September 28, 2007, the Plaintiffs received each deposit money as stated in paragraph (2) deposited by the reconstruction association.
[Ground of recognition] Gap evidence Nos. 11, 17, 26, 38, 39, 43, 49, 50, 51 (including a serial number), Eul's 6, 7, 8, 13, 14, 15, witness N's testimony, and the purport of the whole pleadings
D. Determination
Article 21 (1) 17 of the Income Tax Act provides that "the person who purchased the real estate of this case" shall be deemed as "one kind of other income." The above honorarium means not the money paid for the goods or services itself in connection with the administration of affairs or provision of services, but the money paid separately. Whether it falls under this case shall be determined by comprehensively taking into account the motive and purpose of giving and receiving the relevant money, the relationship with the other party, amount, etc. (see, e.g., Supreme Court Decision 97Nu20304, Jan. 15, 199)." In light of the above legal principles, the above recognition and the following circumstances revealed by the evidence, i.e., that the person who purchased the real estate of this case from the plaintiffs is a reconstruction association, and therefore, KR is not obligated to pay the purchase price of the real estate of this case to the plaintiffs, and that KR, who is an executor, has already commenced reconstruction association and paid the rebuilding price of this case to the reconstruction association in excess of the rebuilding price of this case.
3. Conclusion
If so, all of the plaintiffs' claims are without merit, they are dismissed. It is so decided as per Disposition.