Tax Tribunal 2012 Schedules2492

The key costs of the instant case cannot be recognized as actual construction costs.

Expenses for banking and retaining wall construction claimed by the Plaintiff are capital expenses to improve the instant land, which are favorable to the Plaintiff in the calculation of capital gains tax, and their basic facts are located within the scope of the Plaintiff’s control, and thus, it is difficult for the tax authority to investigate the Defendant, while it is easy for the Plaintiff to prove

2013Gudan3217 Revocation of Disposition of Imposing capital gains tax

Park AA

head of Sung Dong Tax Office

July 26, 2013

October 11, 2013

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

On November 1, 2011, the defendant revoked the imposition disposition of the capital gains tax OOO(including additional tax) against the plaintiff.

1. Details of the disposition;

A. On October 30, 1997, the Plaintiff acquired shares of 1635/2701 square meters among OO-gun OO-gun O-gun 610 square meters (hereinafter “the instant land”), but transferred to the Korea Land Corporation on April 28, 2009, after calculating the acquisition value and necessary expenses equivalent to the Plaintiff’s shares as listed below, and filed a return on the tax base of capital gains tax with the capital gains tax as an OO-gun.

Details of the transfer income tax return;

Classification

Acquisition Value

Capital expenditure (necessary expenses)

Total

Sales Price

The registration tax;

Filling construction costs

Farmland creation cost, exclusive compensation

All

OOO

OOO

Plaintiff’s Equity (1,635/2,701)

OOO

OOO

OOO

OOO

OOO

B. On November 7, 2011, the Defendant paid the Plaintiff to Nonparty BB Construction Co., Ltd. (hereinafter “B Construction”) and investigated the construction cost of the instant land that was reported as necessary expenses, deeming that the said reported details were false, and denied the amount equivalent to the Plaintiff’s share out of the said construction cost, and issued the instant disposition to revise and notify the Plaintiff of the capital gains tax OOO(including additional taxes) accrued to the Plaintiff in 2009.

C. On May 23, 2012, the Plaintiff filed a request for adjudication on May 23, 2012, and the Tax Tribunal decided on November 1, 2012 to re-examine and correct the value of the retaining wall construction cost for the instant land. The Defendant rendered a decision that the initial disposition on December 6, 2012 was justifiable as a result of re-audit on the said construction cost.

Facts without any dispute, Gap 1, 4, 7 evidence, Eul 1 and 2, the purport of the whole pleadings, and the purport of the whole pleadings.

2. The plaintiff's assertion

The land of this case was "the land category" before the Plaintiff acquired, but it is clear that he performed embling and retaining wall construction by performing embling construction and retaining wall construction from September 1, 1997 to October 30, 197, by obtaining permission to divert farmland from the mar Gun and making payment of farmland charges, and changing the land category into "miscellaneous land." However, it is obvious that the Plaintiff submitted a false receipt under the name of BB construction because the Plaintiff could not find the contracted construction at the time of filing the tax base return, but later submitted a receipt and deposit transaction statement after finding the formerCC and submitting the receipt and deposit transaction statement. However, it is unlawful that the Defendant, who bears the burden of proof of the tax requirements, recognizes the construction facts, but transfers the burden of proof of the construction contractor and the construction cost to the Plaintiff.

3. Whether the disposition is lawful;

A. The tax authority shall bear the burden of proving the tax base that is the basis of taxation in a lawsuit seeking revocation of taxation, and the tax base shall be the tax authority as a matter of principle, since the tax base of revenues and necessary expenses is deducted from necessary expenses, the tax authority shall bear the burden of proving revenues and necessary expenses. However, since most of the facts causing necessary expenses are in the sphere controlled by the taxpayer, and it is difficult for the tax authority to prove it. Thus, if it is reasonable to prove the taxpayer by taking into account the difficulty in proving it, equity between the parties, etc., it accords with the concept of fairness (see Supreme Court Decision 2006Du16137, Oct. 26, 2007).

In addition, it is against the rule of experience that deeming necessary expenses as zero because there is no proof of taxpayer or lack of sufficient evidence in the case of apparent occurrence of necessary expenses in light of the rule of experience. Therefore, in a case where it is impossible for a tax authority to conduct a field investigation, the tax authority must prove the amount to the extent that it is possible to calculate by the method of estimated investigation, and in a case where the taxpayer claims necessary expenses more than this, the taxpayer must bear the burden of proof (Supreme Court Decision 91Nu10909 delivered on July 28, 1992).

B. The expenses for filling-up and retaining wall construction claimed by the Plaintiff are capital expenses to improve the instant land, which are favorable to the Plaintiff in calculating capital gains tax, and their basic facts are located within the scope of the Plaintiff’s control, and thus, it is difficult for the tax authority to investigate as the Defendant, while it is easy for the Plaintiff to prove as the Plaintiff. As such, deeming the said facts as necessary for the Plaintiff to prove

In addition, the land category of this case was changed from the "Stopland" to the "Stopland", and it is obvious in light of the empirical rule that the construction cost for constructing a warehouse was paid on the ground. Among the expenses related to the farmland creation cost and farmland diversion compensation, the payment can be confirmed by the receipt and deducted from the calculation of gains on transfer. However, there is no method of an estimate investigation as to the capital expenditure that is deducted from the transfer value of the land in this case. Furthermore, if construction is conducted for the purpose of using, improving, or convenience in the use of, transferred assets, the tax authorities cannot demand the calculation of construction cost, etc., by the appraisal of construction cost. Meanwhile, even if the formerCC was a business operator at the time when the above construction was contracted, the Plaintiff did not receive transaction evidence, such as construction contract and tax invoice, and the formerCC did not report the value-added tax thereon, etc., and there is no objective evidence to prove that the amount withdrawn from the Plaintiff's passbook was used for the construction of the land in this case.

C. Therefore, since the construction cost of the Plaintiff’s assertion cannot be deemed as necessary expenses, the instant disposition that did not deduct it is lawful.

4. Conclusion

Therefore, the plaintiff's claim is dismissed for lack of reason.