Cho Jae-2016-China-2799 ( October 24, 2016)

Whether necessary expenses (capital expenditure) for the appraisal price of construction works are recognized and whether land for non-business use is applicable;

It is difficult to recognize the court appraisal value of the instant construction project as the costs paid by the Plaintiff by a corporation, the representative of which is the Plaintiff. The instant land does not constitute “farmland owned by a person who has obtained permission to divert farmland” as farmland owned by the Plaintiff, since it does not constitute “farmland owned by a corporation that has obtained permission to divert farmland.” Thus, it cannot be deemed as excluded

Scope of land for non-business under Article 104-3 of the Income Tax Act

Incheon District Court-2016-Gu 54675 (Law No. 23, 2018)

△△△△

OO Head of the tax office

8.07.05

208.23.20

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

1. Details of the disposition;

원고는 2001. 4. 7. ○○○로부터 ●●시 ●●군 ●●면 ●●리 625-2, 626, 627, 627-6, 627-7, 735-2 등 6필지 토지(이하 '이 사건 토지'라 한다)에 관한 소유권을 취득한 후, 2013. 6. 26. ▲▲▲에게 이 사건 토지를 대금 000,000,000원으로 정하여 양도하였다. 원고는 2013. 8. 26. 피고에게 이 사건 토지의 양도에 따른 양도소득세 신고를 하면서 양도가액 000,000,000원, 취득가액 000,000,000원, 기타 필요경비 00,310,970원, 양도차익 000,689,030원으로 하여 양도소득세 00,916,160원을 신고하였는데, 그 증빙서류로 매매대금이 000,000,000원으로 기재된 원고와 ○○○ 명의의 이 사건 토지에 관한 2001. 4. 1.자 매매계약서(이하 '이 사건 매매계약서'라 한다)를 제출하였다.

In relation to the Plaintiff’s acquisition value of the instant land, the Defendant: (a) deemed that the instant sales contract is a false contract; and (b) deemed that the actual transaction price at the time of the Plaintiff’s acquisition is impossible to be confirmed; and (c) accordingly, deemed 00,435,508 won, the acquisition price of the instant land, based on the conversion price (hereinafter referred to as “converted price”) pursuant to the main sentence of Article 97(2)2 of the former Income Tax Act (amended by Act No. 12169, Jan. 1, 2014; hereinafter the same shall apply); and (d) recognized 00,268,574 won as necessary expenses, plus the amount prescribed by Presidential Decree (hereinafter referred to as “estimated deducted amount”), 00,618,750 won (including an unjust underreporting amount: 00,646,792 won); and (e) notified 00,007,7888 won (hereinafter referred to as “unfair underreporting amount”) for the Plaintiff on June 1, 2016.

[Ground of recognition] Gap evidence Nos. 2, 4, 5, 6, Eul evidence Nos. 1 and 2, the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

1) Necessary expenses for capital gains

Inasmuch as the Plaintiff acquired the instant land from ○○○○○○○○ KRW 00,00,00,000, the necessary expenses for capital gains from the transfer of the instant land ought to be 00,249,800,000 capital expenditure (such as farmland creation cost) + KRW 00,530,800, + KRW 000,147,000, + KRW 000,147,000, + KRW 00,147,300, and design cost of the instant land + KRW 00,249,800, which is 00,000, which is 00,000, which is 200,000,000, total acquisition value of the instant land according to the instant transfer, as alleged by the Defendant; even if the acquisition value (actual transaction value) of the instant land is 00,000,000,000 won, 360,0084,008,000.

(ii) special deduction for long-term possession;

Since the land of this case is a non-business land under Article 104-3 (1) of the former Income Tax Act with a holding period of at least ten years, the disposition of this case which did not deduct the special deduction amount for long-term holding from the transfer value of the land of this case by deeming that the land of this case is not a non-business land.

3) Illegal imposition of penalty tax

Considering that the Plaintiff’s failure to report and pay part of the amount of tax due to lack of tax knowledge, the penalty tax part among the instant disposition is unlawful.

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

1) As to the assertion of necessary expenses for capital gains

A) Whether the acquisition price should be based on the actual transaction price

Article 97 (1) 1 (b) of the former Income Tax Act provides that where the acquisition value, which is one of the necessary expenses to be deducted from the transfer value, is to be based on the "actual transaction value incurred in acquiring" and it is impossible to confirm the actual transaction value at the time of acquisition, it shall be based on the transaction example, appraisal value, or conversion value prescribed by the Presidential Decree. Article 163 (12) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 26067, Feb. 3, 2015; hereinafter the same shall apply) provides that "business example, appraisal value, or conversion value prescribed by the Presidential Decree" in Article 97 (1) 1 (b) of the former Enforcement Decree of the Income Tax Act refers to the value stipulated in Article 176-2 (2) through (4). Article 176-2 (3) of the former Enforcement Decree of the Income Tax Act provides that the acquisition value calculated by applying the following methods in sequential order in cases where the transfer value or acquisition value is estimated or corrected.

In light of the following circumstances, Gap's evidence Nos. 1, 7, and Eul's evidence Nos. 3 and 3 are insufficient to recognize that the plaintiff acquired the land of this case from 00,000,000 won, or 00,000 won (the sales contract of this case submitted by the plaintiff as evidence after filing a report on the transfer of the land of this case) and there is no other evidence to support the plaintiff's actual transaction value at the time of acquisition of the land of this case from 00,000,000 won, which is 0,000 won after 0,000 won, 00,000 won, which is 0,000 won, 1,000,000 won, 1,000,000 won, 2,000,000 won, 1,000,000 won, 6,000 won, 2,76,76,000.

B) the necessary expenses when the acquisition value is based on the conversion value.

Article 97 (1) of the former Income Tax Act provides that "acquisition value" in subparagraph 1 of the necessary expenses deductible from the transfer value when calculating gains from transfer using the actual transaction value as the transfer value of assets, "capital expenditure, etc. prescribed by Presidential Decree" (hereinafter referred to as "capital expenditure"), "transfer expense, etc. prescribed by Presidential Decree" in subparagraph 3, and "transfer expense, etc. prescribed by Presidential Decree" in subparagraph 1 (hereinafter referred to as "transfer expense") shall be calculated as necessary expenses if the acquisition value is calculated based on the actual transaction value under subparagraph 1. In addition, if the acquisition value is calculated based on the transaction example, appraisal value, conversion value, etc., the acquisition value shall be calculated by adding the estimated deduction amount prescribed by Presidential Decree to the necessary expenses, and in particular, if the sum of the conversion value and estimated deduction amount is smaller than the total capital expenditure and transfer cost, the total amount of the capital expenditure and transfer expense may be calculated as necessary expenses.

As long as the acquisition value of the instant land should be recognized based on the conversion value, the necessary expenses to be deducted from the transfer value of the instant land shall be recognized as KRW 00,435,508, which is the sum of the conversion value and the estimated deduction amount of KRW 0,83,066,00,268,574, which is the sum of the estimated deduction amount. However, if the sum of the Plaintiff’s capital expenditure and transfer expenses related to the instant land exceeds the said KRW 00,268,574, the sum of the capital expenditure and transfer expenses may

C) Whether capital expenditure is recognized

Article 163 (3) of the former Enforcement Decree of the Income Tax Act provides that "expenses incurred for the alteration, improvement or convenience of the use of transferred assets" (Article 3) and "expenses equivalent thereto prescribed by Ordinance of the Ministry of Strategy and Finance (Article 4)" (Article 79 (1) of the Enforcement Rule of the Income Tax Act provides that "expenses for the removal of obstacles (Article 2), expenses incurred for the convenience of land use" (Article 5), "expenses incurred for erosion control work (Article 5), expenses similar to those under subparagraphs 1 through 5 (Article 6)."

The plaintiff asserts that the farmland creation cost 00,530,800 won (farmland preservation charges 00,287,800 won, regional development public bonds 00,000 won, license tax 00,000 won, regional development public bonds 00,000 won for approval of the business plan for tourist accommodation business, and regional development public bonds 00,000 won, and 00,147,000 won for boundary restoration expenses, reclamation expenses and file construction expenses, and 00,249,800 won for construction permission expenses and design expenses, which are 00,300,240,000 won, should be recognized as capital expenses. However, as seen below, the amount proposed by the plaintiff does not constitute capital expenses for the land of this case.

(1) Farmland creation cost and part of boundary restoration cost.

According to the purport of Gap evidence No. 16 and the whole arguments, it can be acknowledged that the plaintiff paid KRW 00,287,800 as farmland preservation charges after obtaining permission to divert farmland according to the business plan for tourist accommodation business, and there is no evidence to prove that the plaintiff paid KRW 00,530,80 as farmland preservation charges (it cannot be deemed that the expenses paid after obtaining permission to divert farmland are included in the plaintiff's capital expenses). Further, according to the evidence No. 17 evidence No. 17, it can be acknowledged that the plaintiff paid KRW 272,00 as related expenses to the Korea Cadastral Survey Corporation on May 15, 2008. However, as long as there is no evidence to prove the details and purpose of the expenses, the above expenses related to the boundary restoration cannot be deemed as capital expenses for the land of this case merely on the ground that there is no evidence to prove the details and purpose of the expenses.

(2) Part of the reclamation cost and file construction cost.

According to Gap evidence No. 21, Jun. 10, 201, the plaintiff paid KRW 00,500,000 to BB on June 10, 201. However, such circumstance alone is insufficient to recognize that the plaintiff paid the amount when he purchased soil from BB for reclamation work of the land of this case, and there is no other evidence to recognize that the amount was actually paid. Meanwhile, since capital expenditure refers to the expenses actually paid, it is insufficient to recognize that the plaintiff actually paid KRW 00,147,00 for the execution of reclamation work and file construction work by only the result of the appraisal entrustment with KK of this court, which is only the appraised value, and there is no other evidence to acknowledge this otherwise.

(3) Construction permit, service cost, and design cost.

The construction permit costs and design costs asserted by the Plaintiff are likely to be calculated as necessary expenses in the event that a building is constructed and transferred, and do not constitute capital expenses related to the instant land, such as “expenses paid for the alteration, improvement, or convenience of use of the instant land” under Article 163(3)3 of the former Enforcement Decree of the Income Tax Act (the Plaintiff asserts that the instant land was included in the subject matter of transfer, but there are no materials to recognize the transfer).

D) Scope of recognition of necessary expenses

Inasmuch as KRW 00,268,574, which is the sum of KRW 00,435,508 and the estimated deduction amount of KRW 0,83,066, which is the sum of the conversion value of the instant land and KRW 0,83,06,00,000, which is the sum of the Plaintiff’s capital expenditure concerning the instant land, cannot be deemed as less than the amount of the Plaintiff’s capital expenditure concerning the instant land (see, e.g., Supreme Court Decision 00,530,800 and KRW 00,000,000, which is claimed by the Plaintiff, are deemed as the Plaintiff’s capital expenditure concerning the instant land, the said capital expenditure does not exceed the sum of the said conversion value and estimated deduction amount), while the Defendant rendered the instant disposition, it is lawful

2) As to the assertion of special deduction for long-term possession

Article 95 (1) and (2) of the former Income Tax Act provides that the amount equivalent to 30% of the transfer margin shall be deducted from the amount of special deduction for long-term holding where the non-business land is owned for not less than 10 years. The proviso of Article 104-3 (1) 1 (a) of the former Income Tax Act and Article 168-8 (3) 4 of the former Enforcement Decree of the Income Tax Act provide that the land used for such exclusive purpose as farmland owned by a person who has obtained permission to divert farmland under Article 6 (2) 7 of the Farmland Act shall be excluded from the land for non-business even if the owner does not reside

Since the land in this case is the land owned by the Plaintiff and owned by the Plaintiff, it does not constitute "farmland owned by the person who has obtained permission to divert farmland" under Article 168-8 (3) 4 of the former Enforcement Decree of the Income Tax Act. Thus, it cannot be deemed that the land in this case is excluded from non-business land pursuant to the proviso of Article 104-3 (1) 1 (a) of the former Income Tax Act and Article 168-8 (3) 4 of the former Enforcement Decree of the Income Tax Act (the Plaintiff asserted that the land in this case does not constitute non-business land because the land in this case was permitted to divert farmland for the purpose of constructing a hotel building, but even according to the Plaintiff's assertion, the land in this case does not fall under Article 104-3 (2) of the former Income Tax Act, Article 168-14 (1) 4 of the former Enforcement Decree of the Income Tax Act, and Article 83-5 (1) 5 of the Enforcement Rule of the Income Tax Act.

3) As to the allegation of illegality in imposing penalty tax

Article 47-3 (2) 1 of the former Framework Act on National Taxes (amended by Act No. 12848, Dec. 23, 2014) intends to impose heavy sanctions on taxpayers who violated the duty to report the tax base or tax amount in an unlawful manner because it is difficult for the tax authority to detect and exercise the right to impose taxes in an unlawful manner in cases where it is difficult to find any fact that serves as the basis for calculating the tax base or the amount of national tax or where there is any false fact, or where there is an unlawful act such as forging a false fact, etc.

In addition, in order to facilitate the exercise of taxation rights and the realization of tax claims, additional tax under tax law is an administrative sanction imposed as prescribed by the Act in cases where a taxpayer violates various obligations, such as a return and tax payment, without justifiable grounds, and the taxpayer’s intention or negligence is not considered and does not constitute justifiable grounds that are not attributable to the breach of duty (see, e.g., Supreme Court Decision 2002Du10780, Jun. 24, 2004). Therefore, the circumstance that the Plaintiff failed to report and pay part of the amount of tax due to lack of tax knowledge does not constitute justifiable grounds for not imposing additional tax on the Plaintiff.

4) Whether the instant disposition is lawful

The disposition of this case is legitimate because it recognizes KRW 00,268,574, which is the sum of the value to be deducted from the transfer value of the land of this case as necessary expenses and the estimated amount of deduction, and does not apply the special deduction for long-term possession, considering the land of this case as non-business land, and thus, it is legitimate to apply the special deduction for long-term possession. The additional tax amount of this case is legitimate

3. Conclusion

The plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.