2012-depth 45 ( December 20, 2012)

Whether brokerage fees and consulting expenses that the Plaintiff transferred may be deemed as necessary expenses for the transferred asset

The evidence submitted by the Plaintiff alone cannot be deemed as a brokerage commission and consulting expense, and it is insufficient to recognize the money transferred by the Plaintiff as necessary expenses, and there is no other evidence to acknowledge it.

Article 163 of the Enforcement Decree of the Income Tax Act

2013Guhap10175 Disposition of revocation of imposition of capital gains tax

KimA

Head of Seogju Tax Office

August 22, 2013

October 17, 2013

1. The part of the claim for revocation of local consumption tax imposition among the instant lawsuit shall be dismissed.

2. The plaintiff's remaining claims are dismissed.

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

Cheong-gu Office

The Defendant’s disposition on the imposition of the capital gains tax and the local income tax OOOO on February 1, 2012, which was issued by the Plaintiff on February 1, 2012, in excess of the capital gains tax OOOO and the local income tax OOOOO (the phrase “ February 5, 2012,” among the claims of the Director, appears to be the clerical error of February 1, 2012).

1. Details of the disposition;

A. On September 13, 2002, the Plaintiff entered into a sales contract for the apartment of this case with OO-Gu OCC apartment 910-5 CCC apartment 103 Dong 401 (hereinafter “the apartment of this case”) and transferred the status of the sales contract holder for the apartment of this case to D on September 13, 2002 (hereinafter “instant sales contract”).

B. On May 31, 2003, with respect to the transfer of the instant sales right, the Plaintiff reported and paid the transfer income tax amount OOOO(the basic transfer income deduction, the transfer tax base OOOO, and 36%) to the Defendant, and OOOO of the local income tax.

C. The Defendant notified of the fact that the value that the Plaintiff transferred to JeonD was an OOOwon, and notified that the acquisition value was an OOOwon in the transfer value on February 1, 2012, the OOOwon in the transfer income tax (including additional taxes, the basic deduction for capital gains, the tax base for transfer income, the tax base for transfer income), and the OOOwon in the local income tax.

D. On April 26, 2012, the Plaintiff filed a request for review with the Chairman of the Board of Audit and Inspection, and the Chairman of the Board of Audit and Inspection dismissed the Plaintiff’s request on December 20, 2012. On January 2, 2013, the Plaintiff was served with the notice of dismissal.

[Ground of Recognition] The facts without dispute, Gap evidence 1 to 3, Eul evidence 1 and evidence 2 (including household numbers), and the whole purport of the pleading

2. Whether the part of the instant lawsuit seeking revocation related to imposition of local income tax is legitimate

According to Article 87 (1), Article 93 (1), (2), and (5) of the Local Tax Act, and Article 94 (2) of the Local Tax Act provides that local income tax is to be paid to the head of a local government who observes the place of tax payment, and the head of a tax office also imposes and notifies income tax in accordance with the Framework Act on National Taxes or the Income Tax Act, and even if income tax is to be imposed and notified together, it is deemed that the head of the local government concerned receives a report or makes a negative and notification. Thus, the part of the claim for cancellation of the imposition of local income tax in this case is unlawful (see Supreme Court Decision 2004Du1459, Feb. 25, 2005; Supreme Court Decision 2004Du11459, Feb. 25, 200; and Article 94 (2) of the Local Tax Act provides that where income tax and corporate tax reported under the Income Tax Act and the Corporate Tax Act are different due to a refund under Article 85-2 of the Income Tax Act and Article 72 of the Corporate Tax Act, and it is not necessary to impose capital gains tax against the plaintiff.

3. Whether imposition of capital gains tax is legitimate.

A. The plaintiff's assertion

Around 2002, the Plaintiff acquired the sales right and received the so-called "OOOOO" in 1 month, so that the real estate transaction in the OO market where the apartment complex of this case is located was active, and the Plaintiff paid OOOO to EOOO in the commission and acquisition consulting cost to arrange for the Plaintiff to acquire the sales right of this case. Therefore, the acquisition value of the sales right of this case is the sum of the sales commission and acquisition consulting cost for the down payment OOOO and the acquisition consulting cost, and it is unlawful that the acquisition value of the sales right of this case exceeds the OOOO won, which is calculated on the premise that the acquisition value of the sales right of this case is the OOO won in the disposition of the transfer of the sales right of this case.

B. Relevant statutes

It is as shown in the attached Form.

C. Facts of recognition

A) On July 11, 2002, the Plaintiff remitted OOF’s accounts to the UNF’s accounts, and the UF remitted OOF to the account of EE on the same day, and the UE remitted OO(E) to the account of EG on July 11, 2002, and then, the UE transferred OO(OO) to the account of EG on the 12th day of the same month, and the 13th day of the same month.

B) The Plaintiff received, on June 15, 2012, a simplified tax invoice with the purport that the Plaintiff and the Nonparty Company received the KRW OO as the down payment for the instant apartment through EE and the down payment for the instant apartment.

C) On September 13, 2002, NA acquired the instant sales right from the Plaintiff, and paid the Plaintiff KRW OO of the down payment OO of the down payment deposit that the Plaintiff paid to the Plaintiff, including OO of the down payment OO of the contract deposit that the Plaintiff paid.

[Standard for Recognition] The facts without dispute, Gap evidence 6, Eul evidence 7-1, evidence 8-2, evidence 1, and evidence 10, and evidence 11, and the whole purport of the testimony and the whole pleadings of the witness E

D. Determination

In addition to the above facts and the whole purport of the arguments, the following circumstances are revealed, i.e., (i) the plaintiff's referral fees and consulting fees, (ii) the plaintiff's referral fees and consulting fees exceed the statutory brokerage fees, (iii) there was no evidence between the plaintiff and EE, and there was no evidence as to whether the E is eligible to provide mediation and consulting services for the apartment of this case, and (ii) even with the testimony of EE, it cannot be known that the GGG from which the E remitted money was transferred, and that there was several intermediaries, and that there was no evidence to acknowledge it as necessary expenses, on the basis of the evidence submitted by the plaintiff, that the plaintiff did not report the above OO won to E in the initial final return on the tax base of capital gains tax, and that there was no evidence to acknowledge it differently from the necessary expenses.

3. Conclusion

Therefore, the part of the lawsuit in this case related to the revocation of local income tax imposition is unlawful and dismissed, and the remaining claims of the plaintiff are dismissed as there is no ground, and it is so decided as per Disposition.