Whether it is possible to claim necessary expenses deduction by submitting evidentiary documents during the procedure to be taken to deduct necessary expenses under Article 45 (1) 3 of the former Income Tax Act (amended by December 21, 1982), and Article 94 (3) 2 of the Enforcement Decree of the same Act, and by submitting evidentiary documents in the process of litigation.

Article 45 (1) 3 of the former Income Tax Act (amended by December 21, 1982) and Article 94 (3) 2 of the Enforcement Decree of the same Act shall not be considered pursuant to Article 94 (5) of the Enforcement Decree of the same Act (amended by Act No. 3790, Dec. 31, 1985) unless the necessary expenses are reported at the time of the preliminary return on the transfer margin or the final return on the tax base, and if the documents are not submitted, it shall not be permitted to claim the necessary expenses deduction by submitting evidentiary documents during the litigation process.

Article 45 (1) 3 of the former Income Tax Act (amended by December 21, 1982), Article 94 (3) 2 and (5) of the Enforcement Decree of the same Act (amended by December 31, 1985), Article 47 (2) of the Enforcement Decree of the same Act (amended by December 31, 1982), Article 47 (2) of the same Act (amended by April 4, 1986)

Plaintiff

head of Dongjak-gu Tax Office

Seoul High Court Decision 87Gu557 delivered on December 23, 1987

Each appeal shall be dismissed.

The costs of appeal shall be assessed against each appellant.

1. We examine the Plaintiff’s grounds of appeal.

(1) According to the facts established by the court below, the real estate No. 1 of this case acquired by the plaintiff on November 5, 1975 was originally one parcel, and approximately 343.6 square meters in Nam-gu, Incheon ( Address 1 omitted). Accordingly, the plaintiff filed a lawsuit against the plaintiff around January 1, 1976 against the non-party 1, who filed a lawsuit claiming the cancellation of the registration of ownership transfer against the plaintiff on September 6, 1978, the plaintiff completed the lawsuit by transferring the real estate No. 136.4 (44.9 square meters in size) corresponding to the present ( Address 2 omitted) among the above non-party and the non-party.

If the purport of the above judicial settlement is that the plaintiff transfers the above land to the above non-party 1 in return for the plaintiff's acquisition of ownership of the portion of the real estate in this case on a conclusive basis, the value of 136.4 square meters of the above land shall be the value of Article 45 (1) 3 of the former Income Tax Act (amended by December 21, 1982), and Article 94 (3) 2 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 1982. Dec. 21, 1982), which is the necessary expenses of capital gains as stipulated in Article 94 (3) 2 of the same Act, and there is no room to regard it as the settlement cost directly required to secure ownership. However, according to the facts established by the court below, the plaintiff did not report the above necessary expenses at the time of the final return on the tax base following the transfer of the above real estate or submit the evidential documents. Thus, the court below's decision is justified without considering the above expenses pursuant to the above provisions of Articles 94 (5) of the Enforcement Decree of the same Act.

(2) Even if the plaintiff did not submit the necessary expenses report and documentary evidence at the time of the final return on the tax base, the court below held that the actual expenses cannot be deemed necessary expenses because the plaintiff failed to submit them at the time of the final return on the tax base because it did not submit them at the time of the final return on the tax base, which violates the precedents such as Supreme Court Decision 85Nu418 Decided December 10, 19

However, according to the provisions of Article 45 (1) 3 of the Income Tax Act (amended on December 21, 1982), Article 94 (3) 2 and Article 94 (5) of the Enforcement Decree of the same Act (amended on December 31, 1982), which applies to this case, in calculating gains from transfer, where a lawsuit is instituted after acquiring transferred assets, among capital expenditures to be deducted from the transfer value, which are one of the necessary expenses to be deducted from the transfer value, and the cost of lawsuit directly required to secure ownership, settlement costs, etc. cannot be calculated due to the reasons prescribed by Ordinance of the Ministry of Finance and Economy such as lack of documentary evidence, etc., the amount calculated by adding one of the following amounts to the standard market price at the time of the acquisition to the necessary expenses. Article 47 (2) of the Enforcement Decree of the same Act (amended on February 28, 1983) of the same Act (amended on February 28, 1983) provides that if the transferor fails to make a report under Articles 95 and 100 of the income tax base return, as necessary expenses.

However, the Supreme Court's precedents are related to the cases before the amendment or establishment of Article 45 of the Income Tax Act, Article 94 (5) of the Enforcement Decree of the Income Tax Act, Article 48 (2) of the Enforcement Decree of the same Act, and Article 48 (2) of the Enforcement Rule of the same Act, and Article 48 (2) of the Enforcement Rule of the same Act, and Article 45

(3) Ultimately, the lower court did not err by misapprehending the legal doctrine as to the lawsuit, and thus, is groundless.

2. We examine the grounds of appeal by the defendant litigation performer.

According to Article 94(5) of the Enforcement Decree of the Income Tax Act (amended by Act No. 3584, Dec. 31, 1982); Article 47(2) of the Enforcement Rule of the same Act (amended by Act No. 3790, Feb. 28, 1983); and Article 47(2) of the Enforcement Rule of the same Act (amended by Act No. 3824, Apr. 4, 1986), in calculating gains on transfer, it is clear that in calculating gains on transfer, the transfer value or acquisition value should be deducted as necessary expenses, either based on the standard market price or based

한편 기록에 의하면, 소론 방수공사비나 알미늄샷시공사의 유리공사비는 당해 고정자산의 내용연수를 연장시키거나 그 가치를 현실적으로 증가시키는 수선비로서 위 소득세법시행령 제94조 제2항 내지 제4항 , 제89조 및 같은법시행규칙 제38조 에 규정된 자본적 지출에 해당하는 필요경비라고 할 것이므로, 위와 같은 취지로 판단한 원심조치는 정당하고 소론과 같은 위법이 없다. 논지는 이유없다.

3. Therefore, all appeals by the plaintiff and the defendant are dismissed, and the costs of appeal are assessed against each appellant. It is so decided as per Disposition by the assent of all participating judges.

Justices Lee Jae-seok (Presiding Justice)