National High Court Decision 2007Du3044 ( December 26, 2007)

Even if the introduction fee is more than the brokerage fee, it is recognized when it is actually paid.

Even if the introduction fee is somewhat more than the brokerage fee for the acquisition of real estate in general, the deduction of necessary expenses is recognized as being in accordance with the actual amount paid, barring special circumstances.

The contents of the decision shall be the same as attached.

1. The part exceeding 38,911,285 won out of the imposition disposition of capital gains tax of 138.329.280 won belonging to the year 2004 against the plaintiff on April 1, 2007 shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Details of the disposition;

The following facts may be acknowledged in full view of Gap evidence 2, Eul evidence 3-1, 2, Eul evidence 1, 2, Eul evidence 3-1 through 3, Eul evidence 4-1 through 4, Eul evidence 5-1 through 4, and Eul evidence 5-1 through 4, respectively:

A. On November 22, 2002, the Plaintiff acquired a 4,007 square meters from ○○○○-dong 374-6, 007 square meters, and transferred the 2,003 square meters prior to 374-6, the same 374-7 square meters prior to 374-7, the same 374-7 square meters prior to 374-7, the same 2,004 square meters (hereinafter referred to as “the 2nd land”) to the largest BB on May 12, 2004, and transferred the 2nd land to KimCC on May 24, 2004.

B. Based on the actual transaction value on June 30, 2004, the Plaintiff estimated and paid KRW 25,719,580 as transfer income tax on the transfer of the instant land by 366,00,000, transfer value of the instant land as KRW 366,00,000, necessary expenses, and KRW 8,160,000.

C. On April 1, 2007, the Defendant issued the instant disposition imposing KRW 138,329,280 on the Plaintiff on April 1, 2007, on the grounds that the actual acquisition value of the instant land was determined as KRW 110,000,000, and the actual transfer value was determined as KRW 460,000.

2. Whether the disposition is lawful;

A. The assertion

The Plaintiff: (a) purchased 200,000,000 won via DDR as a small individual; and (b) purchased 110,000,000 won of the instant land as a Korean national residing abroad at DDR’s request; and (c) did not confirm the actual purchase price; and (d) did not err in deeming the acquisition price to be KRW 110,00,000 on the basis of DDR as KRW 110,000,00 on the basis of DC’s request; (b) while selling the instant land, the Plaintiff paid KRW 25,00,000,000 out of the sale price to DCC, which arranged the sale of the instant land; and (c) accordingly, the Plaintiff asserted that the transfer price of the instant land should be refunded from 460,000,000,000 won, which was returned from 460,000,000 won to 00,000,0000 won, which was additionally calculated by the Defendant.

B. Relevant statutes

The entries in the attached statutes are as follows.

C. Determination

(1) Determination of acquisition value

In full view of the purport of the arguments in Gap evidence 1-2, Gap evidence 4-1 through 3, Gap evidence 5-2, and Eul evidence 5-2, and the purport of the whole pleadings in the testimony of witness DD, the plaintiff can be found to have acquired 20,000,000 square meters of the purchase price of 374-6 ○○○-dong, Gyeonggi-do, ○○○○-dong, 374-6 00,000,000 won from the plaintiff on November 22, 2002. The plaintiff's assertion that Eul's acquisition price of the land of this case is 200,000,000 won is insufficient to reverse the above fact-finding and there is no other counter-proof evidence.

(2) Determination of transfer value

According to Gap evidence 6-1 to 37, Gap evidence 7-1, 8-1, 600, Eul evidence 2000, Eul evidence 2000, Eul evidence 2000, Eul evidence 2000, 374-6,007 m2 of this case's testimony, the plaintiff purchased 000,000 m20, 600, 300, 600, 600, 600, 600, 600, 600, 60, 600, 600, 60, 600, 60, 200, 60, 200, 60, 60, 600, 60, 60, 600, 60, 600, 60, 600, 60, 300, 60, 200, 60, 2006, 2, 300.

(iii) Determination as to whether the expenses of the broker are included;

According to the facts found in Paragraph (2) above, it is recognized that the plaintiff paid 25,00,000 won (25,000,000 won per initial payment to DozkCC-the amount returned to 60,000,000 won) with brokerage commission in connection with the transfer of the land of this case, and even if the brokerage commission is somewhat much than the usual real estate acquisition, the deduction of necessary expenses should be based on the actual amount paid, barring special circumstances. Thus, 25,00,000 won received by Dozzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz

(iv)reasonable tax amount;

If the transfer income tax of the land of this case is calculated again as indicated in the attached tax calculation table, based on the acquisition value of the land of this case 200,000,000, transfer value of 380,000,000, and necessary expenses of 33,160,000 as above, such amount shall be 38,91,285 won.

3. Conclusion

Thus, the disposition of this case is lawful within the scope of KRW 38,911,285 and is not appropriate for the part exceeding the above amount. Thus, the plaintiff's claim of this case seeking revocation exceeding KRW 38,91,285 of the disposition of this case is accepted for reasons.