National Tax Service Review and Transfer 2011-0235 ( November 01, 201)

It is reasonable to regard business compensation and directors' expenses to be paid to the previous lessee by purchasing real estate and paying them as part of the actual purchase price.

In light of the fact that the type of business operated by the lessee and the buyer are different, there is no reason to succeed to or acquire business interest, and the basis for calculation under the agreement is different from the accounting of the lessee, and that the buyer does not pay the business compensation or transfer expenses to the lessee, it is reasonable to regard the amount that the buyer pays to the lessee as part of the actual purchase price.

Article 96 of the Income Tax Act

2012Guhap43 Revocation of Disposition of Imposing capital gains tax

Kim XX et al.

Daejeon Head of the District Tax Office

August 22, 2012

August 29, 2012

1. All of the plaintiffs' claims are dismissed.

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

The Defendant’s disposition of correction and notification of KRW 000 of the transfer income tax for the year 2010 against Plaintiff KimA on July 15, 2011 and KRW 000 of the transfer income tax for the year 2010 against Plaintiff LeeB, respectively, is revoked.

1. Details of the disposition;

A. The Plaintiffs jointly owned 1,603m2 (hereinafter “instant land”) in Daejeon-gu, Daejeon-dong 000 warehouse site, and Plaintiff KimA owned 288.721m2 on the instant land (hereinafter “instant building”).

나. 소외 주식회사 XX모터스(이하 'XX모터스'라 한다)는 2010. 6. 무렵원고 - 김AA이 대표이사를 맡아 운영하고 있는 주식회사 OO(이하 'OO'라 한다)가 임차 중이던 - 이 사건 토지와 건물을 매수하였는데, 그 과정에서 소유주인 원고들과 사이에 XX모터스가 매매대금 000원에 이 사건 토지와 건물을 매수한다는 내용의 賣買栔約書를 작성하는 한편으로, 그와 함께 임차인인 OO와 사이에서도 매수인인 XX모터스가 OO에게 이사비용과 자산양수대금 등으로 000원(부가세별도, 10% 부가세를 포함한 금액은 000원이다)을 지급하기로 하는 다음과 같은 내용의 約定書(이하 '이 사건 약정서'라 한다)를 작성하여 주었다.

C. On October 29, 2010, the O claimed a refund of value-added tax to the Defendant by attaching a newly drafted special agreement and an asset list of the grounds for calculation along with the instant agreement.

D. The director of the Daejeon District Tax Office, as a result of the on-site verification of the value-added tax refund of the 1st 2010 head of XX 2010, on the ground that: (a) the basis for calculation and payment of the value-added tax are unclear; and (b) the head of the Daejeon District Tax Office, including the value-added tax agreed to be paid to the OO by the OO in return for business rights, etc.; and (c) the fact that the O was not confirmed to have paid KRW 000 to the account of the Plaintiff KimA, the transferor of the instant land and building, other than the fact that the O was not verified.

E. On April 14, 201, the Defendant: (a) deemed that the payment of the price of the instant land and building was included in the sale price of the instant land and building; and (b) on July 31, 201, the Defendant corrected and notified the Plaintiff KimA with KRW 00 (hereinafter “instant disposition”).

F. The Plaintiffs were dissatisfied with the instant disposition and filed an appeal with the Tax Tribunal on September 8, 201, but was dismissed on November 3, 2011.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 5, Eul evidence Nos. 1 through 2, 6 and 8 (including each number), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. Summary of the plaintiffs' assertion

XX 000 won paid to O is not the acquisition price of the instant land and buildings, which is not the acquisition price of the instant land and buildings, on a different premise. The instant disposition made by the Defendant on a different premise is unlawful.

B. Determination

Comprehensively taking account of the facts that there was no dispute, Eul evidence Nos. 1 through 12, and witness KimD's testimony, O is the representative of plaintiff KimA as an enterprise that runs construction materials, sand site Do and retail business, and XX heading is the enterprise that runs the automobile comprehensive repair business, and the original heading and OO did not prepare detailed details of the business rights on October 29, 2010.O prepared a special agreement and an asset list of the basis for calculation.OO's average profit for 5 years is not 000 won as stated in the agreement of this case, but 00 won as a whole, 00 won, 00 won, 00 won, 00 won, 00 won, 00 won, 00 won, 200 won, 00 won, 00 won, 00 won, 200, 000, 000, 200, 00, 000, 00, 00.

However, the business right refers to the acquisition at a cost of business interest, such as the permit and authorization, etc. of the transfer business separately from the assets acquired in the process of the transfer business, and the special rights under the Act such as business convenience, geographical circumstances, business secret, credit, reputation, and transaction line, etc. The reason why the OO and XX are different from the accounts of theO, there is no reason to succeed to and acquire the business interest, etc., the calculation basis for the amount under the agreement of this case is different from that of the OO, the O is a company whose representative director is the plaintiff KimA, and the O voluntarily closed the business before the conclusion of the sales contract on the land and buildings of this case, and it is common that the buyer does not pay the business compensation or transfer expenses to the lessee. In light of the fact that the buyer does not pay the business compensation or transfer expenses to the O, etc., it is reasonable to accept the purport of the plaintiffs' assertion to the contrary.

3. Conclusion

Therefore, the plaintiffs' claim of this case is dismissed in entirety as it is without merit. It is so decided as per Disposition.