Early High Court Decision 2009Du6450 ( October 13, 2009)

Whether the amount paid as an intermediate loan interest during the process of acquiring a right to sell can be deemed necessary expenses.

Although it is recognized that the interest on an intermediate payment bank loan on the above objects subject to the right to sell in lots was paid with the right to sell in lots, it is not necessary to acquire the right to sell in lots or to secure the ownership.

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

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposition of capital gains tax of KRW 60,236,720 for the Plaintiff on November 1, 2008 shall be revoked.

1. Circumstances of the disposition;

가. 원고는 2002. 11. 21. 소외 이☆☆로부터 성남시 ★★구 ○○동 192 ●●●● 103동 1903호의 분양권(이하 '이 사건 분양권'이라고 한다)을 취득하였다가, 2004. 11. 25. 현����과 그의 처 이◎◎에게 양도하고, 2005. 1. 31. 그 취득가액을 149,860,000원, 양도가액을 290,936,000원, 필요경비를 83,508,393원으로 산정하여 2004년 귀속 양도소득세 예정신고를 하였다.

B. On January 2008, the director of the Central Regional Tax Office conducted a tax investigation with the Plaintiff. As a result, the transfer value of the sales right of this case is KRW 318,215,00, the acquisition value is KRW 139,860,00, and the acquisition value is KRW 139,860,000, which is reported as necessary expenses by the Plaintiff, and KRW 83,508,393 (the mid-term loan interest of KRW 50,508,393 + the brokerage commission + + KRW 6,00,000 + the attorney fee of KRW 12,00,000 + the agreed fee of KRW 15,00,000) is determined to be not the necessary expenses related to the transfer of the sales right of this case, and notified the Defendant of such taxation data.

C. Accordingly, on November 1, 2008, the Defendant: (a) considered the transfer value of KRW 318,215,00; (b) considered the acquisition value of KRW 139,860,00 as KRW 0; and (c) rendered the instant disposition imposing capital gains tax of KRW 60,236,720 on the Plaintiff.

D. On April 13, 2009, the Plaintiff filed a request for a trial with the Tax Tribunal on the grounds that the said request was dismissed, and the Plaintiff filed the instant lawsuit.

[Ground of recognition] Evidence No. 1-3, Evidence No. 7-1, 2, 8, 9, each entry of Evidence No. 1-2, and the purport of the whole pleadings

2. The plaintiff's assertion

A. On October 2007, the director of the Central Regional Tax Office, who notified the Plaintiff of the tax investigation by the director of the Central District Tax Office, was related to the transfer income tax for the year 2002, but did not find any problem as to it, he unilaterally conducted an investigation by expanding the target to the amount for the year 2004 to the amount for the year 2004 and notified the Defendant, and then made the Defendant take the instant disposition. This is against the principle of transparency in tax investigation or the principle of proportionality and equality.

B. The Plaintiff disbursed KRW 50,508,393 as interest expenses for the loan obligations acquired in the course of acquiring the instant sales right. This shall be deemed as expenses incurred in acquiring the instant sales right or securing the ownership and directly related expenses. Even if not, the Plaintiff entered into a contract to acquire the part payment loan and the obligation thereof at the time of acquiring the instant sales right, and thus, the interest expenses should be recognized as actual transaction value necessary for acquisition under Article 163(1)3 of the Enforcement Decree of the Income Tax Act.

C. On August 13, 2003, after acquiring the right to sell the instant case, the Plaintiff decided to sell it to Nonparty ○○○○○○, but the dispute occurred with the said △△△△△△△△, and 12,00,000 won was incurred as litigation costs, such as attorney fees, and 15,00,000 won was incurred in the process of resolving the dispute. This ought to be deemed to correspond to the amount of litigation costs, compromise costs, etc. directly required to secure the ownership of the property, which is a dispute over the acquisition under Article 163(1)2 of the Enforcement Decree of the Income Tax Act.

D. The Plaintiff spent 6.00.00 billion won as the brokerage commission following the transfer of the right to sell the instant case, which should also be deducted as necessary expenses.

3. Related statutes;

Attached Form is as shown in the attached Form.

4. Determination

(a) Whether the method of tax investigation is unlawful;

In full view of the evidence as mentioned above and the purport of the entire pleadings, the director of the Central District Tax Office of Central District Tax Office of Central District Tax has conducted a field investigation of transfer income tax for the plaintiff in 2002 as a result of a field investigation of transfer income tax for the plaintiff, but confirmed that the acquisition value is excessive and the necessary expenses are deducted in the process of confirming the details of acquisition and transfer of the sale right of this case acquired during that period, and that the defendant who is the head of the competent tax office has notified the defendant of this fact. As such, it is reasonable to impose an amount equivalent to the tax evaded after an investigation is conducted in the course of conducting a tax investigation as to the appropriateness of the tax subject to a direct investigation. Accordingly, it is reasonable that the Central Tax Office of Central District Tax Office has imposed an amount equivalent to the tax evaded after an investigation as to the appropriateness of the transfer income tax subject to such investigation, and has discovered the excessive appropriation of acquisition value and necessary expenses and unfair deduction among the transfer income tax return other than the relevant period, and notified the competent tax office of such taxation and thus, it cannot be deemed unlawful.

(b) Whether the interest on the loan obligation and expenses are equivalent to the necessary expenses; and

According to the above evidence, it is acknowledged that the Plaintiff paid KRW 50,508,393 in total as interest interest on an intermediate payment bank loan to the above objects subject to the right to sell in this case upon the Plaintiff’s acquisition of the right to sell in this case, but it cannot be deemed that the transaction value of the right to sell in this case does not have been confirmed by adding the amount corresponding to the acquisition cost to the above amount corresponding to the acquisition cost, and therefore, it cannot be deemed the actual transaction price required for the acquisition of Article 163(1)3 of the Enforcement Decree of the Income Tax Act, which includes the cost for acquisition of the right to sell in this case, and no other evidence exists to deem

(c) Whether the costs of lawsuit and the costs of reconciliation correspond to the necessary cost.

Comprehensively taking account of the provisions of Article 97 of the Income Tax Act and Article 163(1)2 and Article 163(3)2 of the Enforcement Decree thereof, etc. related Acts and subordinate statutes, in order to secure ownership, etc. with respect to the assets for which a lawsuit for acquisition is filed, the litigation costs and reconciliation costs incurred in order to secure ownership may be deducted as the necessary expenses of the transferred assets in the event a lawsuit is instituted after acquiring the transferred assets. However, even if the expenses paid in connection with the dispute over the assets in question are those not directly related to the acquisition of ownership, the same as the litigation costs and reconciliation costs that are not directly related to the acquisition

그런데, 앞서 든 각 증거에 의하면, 원고가 공제되어야 한다고 주장하는 변호사 수임료 등 소송비용으로 12,000,000원, 화해비용으로 15,000,000원은 원고가 이 사건 분양권을 취득한 후 이를 소외 이◇◇에게 매도하는 과정에서 발생한 매매계약에 따른 분쟁을 해결하는 과정에서 소요된 비용에 불과할 뿐이고, 원고가 그 후 소외 현���� 등에게 양도한 이 사건 분양권의 확보와 직접 관련이 있는 비용으로 볼 수는 없는 것이므로, 위와 같은 경위로 지급된 금원을 두고 위 양도자산의 취득가액 또는 필요경비로 보아 공제될 수는 없다.

(d) Whether relay fees are necessary;

갑 제11호증에는 부동산 중개수수료 6,000,000원을 딸기 공인중개사 대표 김◆◆이 수수한 것으로 되어 있으나, 실제 매매계약서에는 이정공인중개사 등이 중개한 것으로 되어 있으므로, 위 증거만으로는 원고가 이 사건 분양권을 양도하면서 그 중개 수수료로 위 금액 상당을 지출하였다고 인정하기에 부족하고, 달리 그와 같이 볼 만한

There shall also be no data.

5. Conclusion

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