Seoul Administrative Court 2015Gudan61231 ( October 21, 2016)

Appellate Court 2015No2332 (Law No. 1358, 2015)

Real estate rental income shall not be deducted from the acquisition value of capital gains tax for depreciation costs included in necessary expenses in the taxable period, which is a deficit.

(See the first instance court’s decision) The fact that real estate rental income cannot be deducted from the acquisition value of transfer income tax in the taxable period, which is a deficit, is a violation of the constitutional property right or a violation of the no taxation without law, and the expansion or analogical interpretation is not allowed.

Article 97 (Calculation of Necessary Expenses for Transfer Income)

2016Nu7697 Revocation of Disposition of Imposing capital gains tax

OraA

BB Director of the Tax Office

oly 21, 2016

June 15, 2017

July 6, 2017

1. All appeals filed by the plaintiff and the defendant are dismissed.

2. The costs of appeal shall be borne by each party.

1. Purport of claim

The Defendant’s disposition of imposition of KRW 00,000,000, which was rendered to the Plaintiff on October 1, 2014, shall be revoked.

2. Purport of appeal

A. The plaintiff

Of the judgment of the first instance court, the part against the Plaintiff shall be revoked. The Defendant’s revocation of KRW 00,000,000 out of global income tax of KRW 00,000,000, which reverts to the Plaintiff on October 1, 2014.

B. Defendant

The part against the defendant in the judgment of the court of first instance shall be revoked, and the plaintiff's claim corresponding to the revocation shall be dismissed.

1. Quotation of judgment of the first instance;

The reasoning of this court's judgment is as follows, and it is identical to the reasoning of the judgment of the court of first instance, and thus, it is accepted by Article 8 (2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

Parts used for cutting.

No. 20 of the 4th judgment of the first instance court, ...............................................

The first instance court's 7th trial's 20th to 8th trial's 7th trial is as follows.

2) Determination as to the cost of construction and precise safety diagnosis, such as cost of construction, removal cost, and protective door

A) 5 million won for the cost of creative construction

Comprehensively taking account of the overall purport of the arguments in Gap evidence Nos. 4 and Eul evidence Nos. 7, the fact that on August 24, 2007, the plaintiff's personal bank account was deposited at KRW 5 million in the agricultural bank account in the name of Kim○, Kim○, the trade name of ○○ Chang was changed to ○○○, which was the past '○○○,' on March 9, 2007, and the fact that the name of ○○ was changed to ○○ on September 1, 2009 again.

However, in full view of the purport of the argument as to the statement No. 7-2 of the whole argument, the non-party company's claim that the plaintiff paid KRW 5 million to the representative Kim Ho-ho on August 24, 2007 can be acknowledged that the non-party company received the tax invoice from the ○○ Chang-ho and received the tax invoice, and there is no evidence to prove that the plaintiff entered into a construction contract between the plaintiff and the ○○ Chang-ho. Considering the above tax invoice receipt and the circumstances leading up to the deduction of the input tax amount, the non-party company subcontracted the construction project to the ○○ Chang-ho at the time of the remodeling construction work of the building of this case in 2007. However, it seems that the payment of the price was merely a method of transferring the construction cost of KRW 5 million from the account under the name of the plaintiff's personal name to the account under the name of the ○○ Kim Ho-ho-ho, and thus, the expenses for the construction work of this case cannot be acknowledged as necessary for the plaintiff's transfer income tax.

B) 3 million won of removal cost

Comprehensively taking account of the overall purport of the arguments in the statement Nos. 4, 6, and 30-1 of the evidence Nos. 30-1 of the instant remodeling project, it can be acknowledged that Park○ was performing the construction by being awarded a contract for the removal of the fences at the time of the instant remodeling project, 3 million won was deposited from the national bank account in the Plaintiff’s personal bank account on Aug. 30, 2007 to the new bank account of Park○○ on Aug. 30, 2007. At the time, Park○ did not have registered the business and thereafter registered the business with the trade name of “○○ removal.”

However, the above evidence alone is unclear whether Park○○ received a contract from the Plaintiff, and whether it received the subcontract price from the Plaintiff when receiving a subcontract payment from the Plaintiff, and there is no evidence to prove that the contract was concluded between the Plaintiff and Park Il-○○. Rather, considering the overall purport of the pleading in the statement No. 4, it can be acknowledged that the Plaintiff paid KRW 6.9 million to Park○○, including KRW 3 million on October 31, 2007, and KRW 3.9 million on November 13, 2007, respectively, from the account in the name of the Nonparty Company, in light of the whole purport of the pleading, as a whole, in relation to the remodeling construction of the building in this case. According to the above facts, it cannot be concluded that the Plaintiff paid KRW 3 million at the cost of removal (whether or not the Plaintiff was paid by the Nonparty Company). Therefore, the Plaintiff’s allegation in this part is without merit.

C) Part on construction cost, such as fire doors, 1,4830,000 won

원고는 ○○샷시 김○○에게 방화문 및 샷시공사를 도급주어 그 공사대금으로 1,483만 원을 지출하였는데, 일부는 김○○가 정○○ 명의의 계좌로 송금해 달라고 부탁하여 정○○의 계좌로 송금하였다는 취지로 주장한다.

However, in full view of the purport of the entire argument in Gap evidence No. 4, most of the account transfer records against Kim ○ or Jong-○ was withdrawn from the account under the name of the non-party company, and the total amount of remittance to Kim ○○ is limited to KRW 6.3 million, and in addition to the remittance amount claimed by the plaintiff to be a third party who remitted the money at the request of Kim○○○, only the total amount of KRW 1,830,00 is recognized as shown in the following table.

In addition, there is no contract between the plaintiff and Kim ○○.

On the other hand, in full view of the purport of the entire arguments in the statement No. 13-6 of the evidence No. 13, there is a deposit sheet and a simple receipt prepared on the basis of the following table. However, there are many cases where the name of the issuer of the receipt or a deposit receipt is unknown, and there is no objective data to verify the execution of the funds to Kim ○○○ as in the contents of the receipt, and this alone is insufficient to recognize that the Plaintiff paid the following money to ○○○○ in the event of ○○○○○.

In light of the above facts, in remodeling construction of the building of this case, it cannot be readily concluded that the Plaintiff, not the non-party company, paid the costs of the fire doors construction. Therefore, the Plaintiff’s assertion on this part is without merit

D)Expenses for precise safety diagnosis

Although the cost of precise safety diagnosis on the instant building is not directly related to the remodeling, improvement, expansion, construction of facilities, etc. of the instant building, according to the Plaintiff’s assertion, it is difficult to view it as capital expenditure under each subparagraph of Article 67(2) of the Enforcement Decree of the Income Tax Act, since the construction of remodeling of the instant building is conducted prior to the diagnosis and the extension, remodeling, or new construction is determined accordingly.

However, under the following circumstances, Gap evidence Nos. 25, Eul evidence Nos. 9, 10-2, and Eul evidence Nos. 1, 10-2, and each of the statements Nos. 11 are considered as the whole arguments. 17, Oct. 17, 2006, a thorough safety inspection contract was concluded between the non-party company’s name and the non-party company’s representative director of the company, which is not the plaintiff, with the contract amount of KRW 10 million with respect to the building of this case. 2, Nov. 21, 2006, as long as it is deemed that the contract was concluded in the non-party company’s name, it cannot be deemed as necessary expenses. 3, even if the above amount was paid by the plaintiff, it is difficult to recognize the amount of the non-party company’s global income tax deduction as the business registration under the name of the non-party company’s value-added tax, and it is difficult to recognize the amount of the non-party company’s global income tax deduction for 107 years.

2. Conclusion

Therefore, the judgment of the court of first instance is just, and the appeal by the plaintiff and the defendant are dismissed in entirety as they are without merit.