토지 취득 후 발생한 쟁송을 해결함으로써 소유권을 확보하는데 직접 소요된 화해비용에 해당함[국패]
early 201J 0260 ( November 01, 201)
the settlement cost directly required to secure ownership by resolving disputes arising after acquiring land.
Since the amount paid to the transferor by agreement has the nature of consideration for the transferor to waive all his/her rights to the land and to withdraw an appeal, it falls under the reconciliation cost directly required to secure the ownership by resolving disputes arising after the acquisition of the land and must be deducted as necessary expenses.
2012Guhap335 Revocation of Disposition of Imposing capital gains tax
HongAA. 2 other
the director of the tax office of Western
October 25, 2012
November 29, 2012
1. The Defendant’s imposition of KRW 00 of transfer income tax for the year 2007 against Plaintiff HongA on June 3, 2010, and KRW 000 of transfer income tax for the year 2007 against Plaintiff HongA, as well as KRW 00 of transfer income tax for the year 2007 against Plaintiff HongB, and KRW 00 of transfer income tax for the year 2007 against Plaintiff HongA.
2. The costs of the lawsuit are assessed against the defendant.
In light of each description of Gap evidence 1-1, Gap evidence 2-1, and evidence 3-1, "the statement of claims and the application for change of the cause of claims" appears to be a clerical error.
1. Details of the disposition;
가. 원고들은 2006. 12. 5. 김포시 OO면 OO리(이하 'OO리'라고만 한다) 000 임야 450㎡ OO리 000 임야 5，114㎡， OO리 0000 임야 13，818㎡， OO리 0000 임야 1，046㎡ 중 각 1/3 지분에 관하여 2004. 5. 10. 협의분할에 의한 상속을 원인으로 한 소유권이전등기를 마쳤고， 원고 한CCC은 2004. 6. 24. OO리 000 임야 1，129㎡ 에 관하여 2004. 5. 10. 협의분할에 의한 상속을 원인으로 한 소유권이전등기를 마쳤 다.
(b) ① OO Ri 450 square meters of 450 square meters are three parcels on December 28, 2007, including OO Ri 00-2, 11, and 12, and ② OO Ri 00-7 forest 5,114 square meters are five parcels on the same day, including OO Ri 00-7, 13, 14, 15, and 16, and ③ OO Ri 00-8 forest 13,818 square meters are six parcels, such as OO Ri 00-8, 17 through 21, and DO Ri 00-9 forest 1,129 square meters are divided into two parcels, each on the same day.
C. On December 28, 2007, the Plaintiffs: (a) transferred part of eight parcels of land owned by the Plaintiffs, such as OO00-2, owned by the Plaintiffs, whose land category was changed to a road or land for a factory, to GG Industry Co., Ltd. (hereinafter “instant land”); and (b) applied for capital gains tax on May 31, 2008, after transferring the land to GG Industry Co., Ltd. as follows:
(Omission of Application for Transfer Income Tax)
D. The Defendant, while transferring the ownership of the instant land by the Plaintiffs, subrogated for the instant land of HHtech Co., Ltd. (hereinafter “HHtech”), and included 00 won in the acquisition value of the instant land as collateral (hereinafter “instant debt”), but this was excluded from the acquisition value on the ground that it was a debt for which the Plaintiffs did not have any obligation to repay, and on June 3, 2010, issued the instant disposition to notify the Plaintiff HongAB of the transfer income tax of 00 won for the year 2007 and the transfer income tax of 000 won for the year 2007, and the transfer income tax of 2000 won for the year 2007 to KoreaCC.
E. On December 29, 2010, the Plaintiff filed an objection and filed an appeal with the Tax Tribunal on December 29, 201, but was dismissed on November 1, 201.
[Grounds for Recognition] The facts without dispute, Gap evidence 1 through 4, Eul evidence 7, and Eul evidence 1 (including natural disaster), and the purport of the whole pleadings
2. Whether the disposition is lawful;
A. The plaintiffs' assertion
The Plaintiffs, rather than subrogated to the instant debt of HHtec, paid funds for debt repayment by agreement in the civil procedure with Htec as to the instant land in the course of the civil procedure with Htec as to the instant land. Therefore, the said amount should be deducted from the necessary expenses, and even if the Plaintiffs subrogated to the instant debt, even if they were to have subrogated to the instant debt, it should be deducted from the necessary expenses, as the
(b) Related statutes;
It is as shown in the attached Form.
(c) Fact of recognition;
(1) On May 22, 2002, KK, the decedent of the plaintiffs, completed the registration of creation of a mortgage on four parcels of land, such as the OO 00-2, 7, 8, and 10, owned by it, and thereafter, PPPP bank (hereinafter "PP bank") on January 24, 2003 (hereinafter "PPPP bank") completed the registration of creation of a mortgage on the above four parcels of land, the debtor Htec and the maximum debt amount of 00 won, and the IIII Savings Bank completed the registration of creation of a mortgage on the three parcels of land, including OO 00-2, 7, 8, and 8, and 3, the debtor, and the debtor, the maximum debt amount of H0 et al. on September 18, 2003.
(2) On May 10, 2004, KK filed a lawsuit against Htech, PPP bank, etc. seeking the registration of ownership transfer in the name of Htech with respect to the above four parcels of land, and the cancellation of the registration of ownership transfer in the name of the PPP bank, etc. (hereinafter referred to as "the lawsuit in this case") and subsequently taken over the lawsuit on May 10, 2004.
(3) On June 27, 2006, in the instant lawsuit, the Plaintiffs cited the Plaintiffs’ claim for cancellation of ownership transfer registration against Htech and were sentenced to dismissal of the remainder of the claim, and appealed Htech only to Htech, and PPP bank was voluntarily decided to commence auction as of August 3, 2006 by the Incheon District Court Branch of the Incheon District Court at 2006ta21687.
(4) On November 30, 2006, the LL representing the plaintiffs made an agreement (hereinafter referred to as the "agreement in this case") to waive the registration of creation of a neighboring establishment of the PPPP bank, etc. and to withdraw the appeal of the lawsuit in this case by giving up all rights to the above four parcels of land including the land in this case, and the plaintiff made payment of the debt in this case to the PPP bank with the money when borrowing the maximum L, and 00 won from the M, and the plaintiffs made payment to the PPP bank.
(5) HH테크는 2006. 12. 1. 이 사건 소송에서 항소를 취하하였고， PPPP은행은 2006. 12. 7. 경매개시신청을 취하하였으며， 같은 날 PPPP은행， 주식회사 NN저축 은행의 각 근저당권설정등기가 2006. 12. 6. 해지를 원인으로 말소되었고， 2006. 12. 11. 이QQ 명의의 근저당권설정등기가 2006. 12. 8. 해지를 원인으로 말소되었다.
(6) At the time of the instant disposition, the Defendant deemed that the remainder of KRW 000,000, which was spent by the Plaintiff to repay the instant debt, as the settlement cost required to secure ownership, was the necessary expenses, and recognized as the necessary expenses.
[Grounds for Recognition] The non-speed facts, Gap evidence 5, 6, 7, 10, 11, and 13 (including household numbers), each fact inquiry results for the PP Bank of this Court, and IIII Savings Bank, and the whole purport of the arguments.
D. Determination
According to Article 97(1) and Article 163(3) of the former Income Tax Act (amended by Act No. 10408, Dec. 27, 2010); and Article 163(3) of the Enforcement Decree of the same Act, “where a dispute arises after acquiring transferred assets, the amount excluding the amount included in necessary expenses in calculating the income amount in the year of payment in which the transfer profit was paid” shall be deducted from the transfer value as necessary expenses among the capital expenses when calculating transfer profit. In other words, the following circumstances established after considering the above facts as a whole, the plaintiffs, under the circumstances that the ownership of the land of this case was not secured by filing an appeal in the lawsuit of this case, and due to the commencement of voluntary auction procedure for the land of this case and the amount of debts due to delay increase, the defendant, which recognized the ownership of the land of this case to be used by the plaintiff for settlement of the total amount of the capital expenses of this case 0 H0 H 20 H 0, which was paid by the plaintiff under the agreement of this case.
3. Conclusion
Therefore, since the plaintiffs' claims are well-grounded, all of them shall be accepted, and they shall be decided as per Disposition.