early 2013 Mine214 ( November 04, 2013)

Since the disbursement is not confirmed, it cannot be deemed necessary expenses.

As long as the materials to prove the capital expenditure of land are not presented, the plaintiff's assertion that such materials are recognized as necessary expenses is without merit.

Article 97 of the Income Tax Act

Jeonju District Court-2014-Guhap271 (2015.08)

○ ○

○ Head of tax office

2015.06.10

2015.07.08

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The disposition of imposition of capital gains tax (including additional dues) by the Defendant on February 7, 2013 to the Plaintiff on February 7, 2013 is revoked.

1. Details of the disposition;

A. On November 18, 2003, the Plaintiff purchased one-half share of ○○○○-dong, ○○○-5, prior to 0-5, and completed the registration of ownership transfer on November 28, 2003, from ○○○○○ on November 18, 2003 (hereinafter referred to as “the entire land of ○○-5, and the part corresponding to the Plaintiff’s share among them is “the entire land of this case”). The instant land was acquired through consultation with ○○ Corporation on December 24, 2007, and the Plaintiff completed the registration of ownership transfer on the instant land on December 27, 2007.

B. On February 27, 2008, the Plaintiff: (a) on February 27, 2008, ○○-dong, ○○-1, ○○○-dong, ○○-1

(hereinafter referred to as “Adjoining land”) filed a preliminary return on the tax base of capital gains tax for the year 2007 on the transfer income tax, without submitting evidentiary documents to verify the actual transaction price at the time of the acquisition of the land in this case, and reported the acquisition value to ○○ won by reporting the acquisition value to the amount calculated by dividing the standard market price at the time of the transfer by the standard market price at the time of the transfer, by

C. The Defendant: The transfer income tax under the farmland substitute land under Article 70 of the Restriction of Special Taxation Act

On February 7, 2013, on the ground that the reduction was not subject to reduction and exemption, the instant disposition was rendered to determine and notify the capital gains tax (=○○ Won of capital gains tax + KRW KRW 00 of special rural development tax + KRW 00 of local income tax and additional tax) calculated by excluding the application of the above provision to the Plaintiff.

D. The Plaintiff dissatisfied with this and sought revocation of the instant disposition to the Tax Tribunal, but on March 2013.

11.4. was dismissed.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 9, 12, 13 (including branch numbers if there are branch numbers; hereinafter the same shall apply), Eul evidence Nos. 1 and 6, and the purport of the whole pleadings

2. The plaintiff's assertion

On November 18, 2003, the Plaintiff purchased the instant land at the actual transaction price of 00,000 won. Among the instant land, in order to expand the usable areas for growing special crops and trees, etc. among the instant land, the land development cost was invested in KRW 00,000 from July 20, 2003 to December 20, 2003, thereby increasing the real value of the instant land. As such, the acquisition price of the said land and the site development cost are the necessary expenses to be deducted when calculating the transfer value.

Nevertheless, the disposition of this case, which calculated capital gains tax without deducting it, shall be revoked as it is unlawful.

3. Related statutes;

It is as shown in the attached Form.

4. Determination

A. Article 97(1) and (3) of the former Income Tax Act (amended by Act No. 9270 of Dec. 26, 2008; hereinafter the same shall apply) provides for necessary expenses to be deducted from the transfer value when calculating gains on transfer of a resident; where the acquisition value is based on the actual transaction value, the amount calculated by adding the amount prescribed by Presidential Decree such as capital expenses to the actual transaction value; where the acquisition value is based on the conversion value as it is impossible to verify the actual transaction value at the time of acquisition; and where the acquisition value is based on the conversion value, etc., the amount calculated by adding the amount prescribed by Presidential Decree to the conversion value; and Article 163(3)3 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 20720 of Feb. 29, 2008; hereinafter the same shall apply) provides for "expenses disbursed to change, improve or convenience the use of assets" as one of the capital expenses prescribed by Presidential Decree; Article 163(6)3) of the Act provides for necessary expenses to be added to the acquisition value at the publicly assessed land price at the time.

On the other hand, since the tax authority bears the burden of proving the legality of taxation, the tax authority bears the burden of proof as a matter of principle, but the tax authority bears the burden of proof as necessary expenses. However, the deduction of necessary expenses is more favorable to the taxpayer, and most of the facts constituting the basis of necessary expenses are located within the control area of the taxpayer and thus the tax authority has difficulty in proving it. Thus, if it is reasonable to have the taxpayer prove the burden of proof in consideration of difficulty in proving it or equity between the parties, the need for proving it shall be deemed that the taxpayer should return to the taxpayer (see, e.g., Supreme Court Decisions 2006Du16137, Oct. 26, 2007; 91Nu10909, Jul. 28, 199

B. According to the records of evidence Nos. 8 and 16 as to the instant case, the Plaintiff’s statement was as follows.

11. A sales contract stating that the land of this case is purchased at 00,000 won from 18.18. He/she may recognize the fact that the Plaintiff, on June 15, 2003, entered into a contract with 00,000 won for the construction work and the reclamation work on 692.5 square meters among the entire land of this case, by setting the contract to 0,000 won for the construction work and from July 20, 2003 to December 20, 2003.

However, the following circumstances are revealed by comprehensively taking account of the evidence No. 2 and No. 6 and No. 7’s respective entries and arguments, namely, ① the conversion price calculated pursuant to Article 114(7) of the Income Tax Act at the time of the preliminary return of the tax base of capital gains tax on the transfer of the instant land and its neighboring land, and Article 176-2(2)2 of the Enforcement Decree of the Income Tax Act only reported ○○ Won calculated pursuant to Article 97(3) of the Income Tax Act and Article 163(6) of the Enforcement Decree of the Income Tax Act as the acquisition price of the instant land and other necessary expenses, and the Plaintiff did not submit any materials verifying that the actual transaction price at the time of the acquisition of the instant land or the site creation cost for the instant land was incurred, and ② the Plaintiff did not report the construction cost to the Plaintiff on June 30, 200 and the construction period to the Plaintiff’s transfer price for the instant land as the necessary expenses for the instant land to the extent that the Plaintiff did not actually claim for the said construction work cost.

Therefore, in a lawsuit seeking revocation of a tax disposition, which determines the legality of the disposition, depending on whether the amount exceeds the amount of tax properly calculated, even if the Plaintiff acquired the land in this case in accordance with the above sales contract, as seen above, insofar as it is difficult to view that the cost of site creation should be additionally deducted from the transfer value as seen above, the Defendant’s calculation of transfer margin by deducting the acquisition cost of the land in this case calculated by conversion price from the transfer value according to the Plaintiff’s report and the KRW 00,000 calculated according to the Income Tax Act and its Enforcement Decree from the transfer value would not exceed the amount of tax calculated based on

5. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.