Daejeon District Court 2014Nu12084 (20 June 20, 2014)

(C) The revocation of the disposition imposing capital gains tax;

The brokerage commission of this case is the amount subject to the necessary expenses following the transfer of the real estate of this case.

Income Tax Act

Cheongju District Court 2015Guhap306

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ㅁㅁ세무서장

National Rotations

5, 2015

April 2, 2015

1. The part of the judgment of the first instance against the plaintiff falling under the subsequent part of the order of revocation shall be revoked.

The Defendant’s disposition in excess of KRW 62,920,158 of the principal tax of capital gains tax for the year 2002 imposed on the Plaintiff on April 8, 2013 exceeds KRW 80,920,158, and the disposition in excess of KRW 4,543,807 of the disposition in excess of KRW 6,379,546 of the additional tax on negligent tax returns, and the disposition in excess of KRW 112,606,176 of the disposition in excess of KRW 80,224,176 of the additional tax on additional tax on capital gains tax for the year 202 as of April 23, 2013 is revoked, respectively

2. All costs of the lawsuit shall be borne by the defendant.

The judgment of the first instance shall be revoked. The portion exceeding KRW 129,225,863 of the imposition disposition of capital gains tax (including additional tax) of KRW 181,443,604 against the Plaintiff on April 8, 2013 by the Defendant in excess of KRW 129,225,863 of the imposition disposition

(52,217,741) Revocation (the plaintiff shall be deemed to be within the scope of the trial by the following party).

11. 25. The instant taxation disposition in April 8, 2013 seems to have been reduced through the revision of the purport of the appeal. The amount of the instant taxation disposition in question was KRW 233,258,527, but was 199,905,880 upon the final revision of the relevant reduction on July 18, 2014 following the partial increase and revision for the following reasons. The 181,43,604 won asserted by the Plaintiff at KRW 19,905,880, which was 6,064,521, and the amount of the final determination notice at KRW 11,864,56, and KRW 19,90,905,80 (the amount of the tax calculated on April 18, 2013, the total of KRW 19,906, KRW 164,566, and KRW 1065,00,000,000,065).

1. Scope of the deliberation of the political party;

In the first instance court, the Plaintiff’s transfer income tax (including additional tax) that the Defendant against the Plaintiff on April 8, 2013.

184,650,550원의 부과처분 중 129,225,863원을 초과하는 부분의 취소를 청구하였고, 제1심 법원은 원고의 청구를 모두 기각하였다. 이에 대하여 원고가 불복하여 항소를 제기하였는데, 원고는 2014. 11. 25.자 항소이유서 제6, 7면에서 "피고가 2013. 4. 8. 원고에 대하여 한 2002년 귀속 양도소득세(가산세 포함) 181,443,604원의 부과처분 중 129,225,863원을 초과하는 부분의 취소"를 청구하는 내용으로 항소취지를 변경하였으므로, 이로써 청구취지도 감축한 것으로 본다 �원고가 제1심에서 취소를 구하던 부분의 세액은 55,424,687원(= 184,650,550원 - 129,225,863원)이고, 당심에서 항소취지변경을 통해 취소를 구하는 부분의 세액은 52,217,741원(= 181,443,604원 - 129,225,863원)이므로, 당초의 청구보다 감축한 것이 된다. 따라서 당심의 심판범위는 원고가 주장하는 "피고가 2013. 4. 8. 원고에 대하여 한2002년 귀속 양도소득세(가산세 포함) 181,443,604원의 부과처분 중 129,225,863원을 초과하는 부분의 취소 청구"로서 위 199,905,880원에서 필요경비 5,000만 원을 추가로 인정하여 산정된 세액을 초과하는 부분의 취소 청구로 한정된다.

2. Details of the disposition;

A. On December 20, 2002, the Plaintiff: (a) on December 20, 2002, distributed toCC on December 20, 200 a.m. 930 square meters at school clubs 1,752.4 square meters (hereinafter

After completing the procedure for the transfer registration of ownership based on sale as to the land of this case (hereinafter referred to as the "land of this case"), on February 25, 2003, the Defendant made a preliminary return and voluntary payment of capital gains tax of KRW 11,864,556 to the Defendant.

B. On April 8, 2013, the Defendant: (a) on the Plaintiff, the transfer income tax for the year 2002 for the Plaintiff (including additional tax)

233,258,527 won (=the determined tax amount of KRW 92,440,158 + the additional tax on negligent tax returns of KRW 7,487,713 + the unpaid payment

The imposition of actual additional tax amounting to KRW 133,30,656) was imposed, but on April 23, 2013.

136,04,400 won was adjusted to increase. Accordingly, the capital gains tax (including additional tax) for the year 2002 became 235,932,271 won.

C. On July 10, 2013, the Plaintiff filed an objection with the Tax Tribunal on September 26, 2013, stating that “The amount of KRW 82 million paid as consulting fees within the brokerage commission should be included in the necessary expenses.” On August 14, 2013, the Plaintiff filed an appeal with the Tax Tribunal on September 26, 2013. On December 5, 2013, the Tax Tribunal rendered a judgment on imposition of capital gains tax of KRW 218,03,190 on April 15, 2002, the applicant for the disposition of imposition of capital gains tax of KRW 32 million as at the time of calculating the amount of capital gains of the instant land, and the remaining claims are dismissed” (the amount of KRW 32 million as at the time of calculating the amount of capital gains of the instant land, and the amount of capital gains tax of KRW 218,03,00,000 as at the time of calculating the amount of capital gains of the instant land, and the remaining claims are dismissed.”

D. The Defendant included necessary expenses of KRW 32 million in the necessary expenses, and decided against the Plaintiff on December 11, 2013.

The amount shall be 80,920,158 won, the additional tax on negligent tax returns shall be 6,379,546 won, and the additional tax on negligent tax for arrears.

The reduction of KRW 115,279,920 was revised accordingly. Accordingly, the transfer income tax for the year 2002 (additional tax) shall be levied.

b) became 202,579,624 won.

E. On June 9, 2014, the Defendant reduced the Plaintiff from KRW 112,606,176 to KRW 112,60.

In light of the foregoing, the additional tax on negligent tax returns shall be increased to 6,412,520 won, and the additional tax on negligent tax returns shall be revised again on July 18, 2014.

The additional tax for bad faith was revised to KRW 6,379,546. Accordingly, the transfer income tax for the year 2002 (including the additional tax) (including the principal tax for the transfer income tax on April 8, 2013) + 80,920,158 won 2) + the additional tax for negligent tax on negligent tax returns on April 8, 2013 + 6,379,5463 won for negligent tax on negligent tax returns on April 23, 2013.

112,606,176원4))이 되었다 �이하 원고에 대한 위 2002년 귀속 양도소득세(가산세 포함)

1) The already paid tax amount is the total determined tax amount before deducting the already paid tax amount of KRW 6,064,521 and KRW 11,864,556. The amount “19,372,678” stated in the third sentence of the first instance judgment is the amount in a state in which the total tax amount of KRW 19,905,80 is not reflected in the calculation of KRW 53,202 of the other items.

2) Of the principal tax of capital gains tax as of April 8, 2013, the amount remaining after the final reduction is over KRW 92,440,158.

3) Of the additional tax returns on negligent tax returns on April 8, 2013, the amount remaining after final reduction or correction is the amount of KRW 7,487,713.

The total imposition of KRW 199,905,880 is called the "disposition of this case".

[Reasons for Recognition] Facts without dispute, Gap evidence 1, 2, 4, 5, Eul evidence 1-1, 2, Eul evidence 2 through 4, 6, Eul evidence 7-1, Eul evidence 8, 10-1, 2, 11-1, respectively.

Statement, the purport of the whole pleading

3. Whether the instant disposition is lawful

A. The plaintiff's assertion

On November 29, 2002, the time when the Plaintiff transferred the instant land toCC, the broker Aa.

(320,000,000 won or more as a broker fee for the necessary expenses recognized by the Defendant;

Since 50 million won or more is paid with consulting fees, the above amount is recognized as necessary expenses.

Therefore, among the disposition of imposition of capital gains tax (including additional tax) for the Plaintiff in the year 2002, the above 50 million won should be additionally included in the necessary expenses and should be revoked.

B. Relevant legal principles

The burden of proof for the tax base that is the basis of taxation in a lawsuit revoking the income tax disposition.

The tax base shall be the Office and shall be the revenue, as the necessary expenses are deducted from the revenue.

The burden of proof of necessary expenses also belongs to the tax authority in principle, but necessary expenses shall be liable to pay tax.

In addition, most of the facts giving rise to necessary expenses are more favorable to the person, and most of the tax liability.

If it is difficult for the tax authority to prove it because it is located in the territory under its own control.

Therefore, considering the difficulty of proof or equity between the parties, the taxpayer is liable for tax payment.

that if it is reasonable to have the taxpayer prove the need of such proof,

The concept of fairness is consistent (Supreme Court Decision 2006Du16137 Decided October 26, 2007, etc.).

C. Determination

(1) The plaintiff added 50 million won to A with a brokerage commission or a consulting commission.

Whether there is any urgent fact

In full view of the following circumstances, Gap evidence 3, Eul evidence 4, Eul evidence 6, Eul evidence 7-2 and 3, Eul evidence 7-2 and Eul evidence 7-3, each of the orders to submit taxation information to the court of first instance and the director of the Daejeon District Tax Office of this court, and each of the testimony of the witness B of the court of first instance, which are acknowledged as having neglected the whole purport of the pleadings, the fact that the plaintiff additionally paid 50 million won to "CC" on November 29, 2002 in the course of transferring the land of this case through brokerage between A and B.

Recognized.

① “A received the KRW 50 million on November 29, 2002” as “A” No. 3 (Receipt).

(1) the recipient, the indication of the real property, the name of the money, etc. shall be specified only in the statement to that effect;

not mentioned above.

However, the Supreme Court Decision ADDD 288 delivered by the Plaintiff at the time of the transfer of the instant land toCC (No. 4, No. 7-2) is the person described as a broker in the sales contract (A. 4, No. 7-2, and the above

매계약서에 기재되어 있는 'aa' 부분의 필체와 갑 제3호증(영수증)에 기재되어 있는 'aa' 부분의 필체가 동일하고, CC가 2012년경 이 사건 토지를 제3자에게 양도하고 북대전세무서에 그 양도소득세신고를 하면서 필요경비(취득비용) 관련 자료로 제출한 영수증 2매 중 1매에 한글로 기재된 'aa' 부분의 필체도 갑 제3호증(영수증)에 기재되어 있는 'aa' 부분의 필체와 동일한 점, ㉢ 갑 제3호증(영수증)에 기재되어 있는 날짜(2002. 11. 29.)와 위 매매계약서에 중도금 지급기일로 기재되어 있는 날짜(2002. 11. 29.)가 일치하는 점, ㉣ 갑 제3호증(영수증)은 원고가 그 사본을 소지하고 있다가 제출한 것인 점 등 제반 사정을 함께 고려하여 보면, aa이 원고와 CC 사이의 이 사건 토지 매매를 중개하면서 그 중도금 지급기일인 2002. 11. 29. 원고로부터 위 중개와 관련하여 5,000만 원을 수령하고 원고에게 갑 제3호증(영수증)을 작성해 주었다고 보아야 할 것이다.

② 원고가 CC에게 이 사건 토지를 양도할 당시에 작성된 매매계약서(갑 제4호증, 을 제7호증의 2)에는 BB도 중개인으로 기재되어 있다. 당심 증인 BB은 이 법정에서 "㉠ 증인이 aa과 함께 원고가 CC에게 이 사건 토지를 매도하는 거래를 중개하였다. 증인과 aa이 매도인인 원고로부터 이 사건 토지를 평당 250만원씩 팔아주고 평당 16만 원씩 약 8,500만 원의 수수료를 지급받기로 하였고, 증인과 aa 사이에는 aa이 5,000만 원을 사용하고 나머지 3,500만 원은 증인이 사용하기로 하였다. ㉡ 증인은 원고와 원고의 남편이 CC로부터 받은 중도금 중 5,000만원을 aa에게 주는 것과 aa이 돈을 받고 영수증을 써주는 것을 보았다. ㉢ 증인과 aa은 매매잔금 지급 시 원고로부터 나머지 3,500만 원을 지급받아야 하지만 매매잔금 자투리가 200만 원이라서 3,200만 원만 지급받았고, 위 3,200만 원은 증인이 사용하였다. ㉣ 중개수수료는 금액의 상한이 있어서 이를 초과하는 금액은 컨설팅수수

A testimony consistent with the plaintiff's argument to the effect that "........" was made (the contents of the testimony are specific, and the credibility of the testimony can be recognized by consistent with all the circumstances related to the sale and purchase at that time).

③ On May 20, 2002, the Plaintiff acquired the instant land in KRW 1 billion, but 2002.

12. 20. 20. 20. 20. 20. 1.325 billion won, the transfer margin is KRW 265 billion.

(i) KRW 1.325 billion - KRW 1.66 million - the brokerage commission or consulting commission (i.e., KRW 32 million which is recognized as necessary expenses by the decision of the Tax Tribunal + KRW 50 million which the Plaintiff claims as necessary expenses by the decision of the Tax Tribunal). Even if the Plaintiff disbursed approximately KRW 16.7 million for other necessary expenses, the Plaintiff’s transfer of the instant land (i.e., KRW 265 million - KRW 82 million - KRW 16.6 million -6 million -6 million - 16.0 million - the Plaintiff cannot be deemed as going against the empirical rule, since it is difficult to deem that the Plaintiff’s resale profit of KRW 300 million equivalent to about KRW 300,000,000 which is recognized as necessary expenses by the decision of the Tax Tribunal is against the empirical rule.

④CC is a brokerage commission to aa at the time of acquiring the instant land from the Plaintiff.

The Plaintiff appears to have paid KRW 8 million, which is an intermediary for the transfer of the instant land.

It shows a big difference between 82 million won and the consulting fee. However, it shows a big difference in the amount of 82 million won.

In the instant land transaction, the Plaintiff was in the seller’s position andCC was in the buyer’s position.

The plaintiff gains approximately KRW 265 million in the short term transfer of the land of this case. The plaintiff gains capital gains approximately KRW 265 million in the short term.

In light of the fact that there was a position, the Plaintiff andCC are related to the sale and purchase of the instant land.

the amount of the brokerage commission or consulting fee paid by each such person is not much different;

It is difficult to view that the examination rules are contrary to the examination rules.

(2) whether the commission or consulting commission is added to the necessary expenses of 50 million won, and the party

assessment of capital gains tax

As seen earlier, the Plaintiff’s transfer of the instant land toCC

on November 29, 2002, payment of KRW 50 million to a broker (a) with a brokerage commission or consulting commission.

According to the above facts, the above 50 million won is recognized and the above 50 million won is recognized.

18. Article 97(1)4 of the Act, the Enforcement Decree of the former Income Tax Act

Article 163 (5) 1 of the Civil Code (amended by Presidential Decree No. 17825 of Dec. 30, 2002)

'Expenses directly paid for the transfer of assets' should be included in necessary expenses. As above, the legitimate tax amount of the transfer income tax (including additional tax) for the year 2002, which is calculated when included in necessary expenses, shall be included in the calculation of necessary expenses (including additional tax) is 147,68,140 won, such as the entry in the total determined tax amount column in the attached Table of "Calculation Details of Transfer Income Tax" (=147,68,688,158 won in principal tax + KRW 62,920,158 in additional tax + KRW 4,543,807 in additional tax + KRW 80,24,176, and below KRW 10).

(3) Sub-determination

Therefore, 147,688,140 won (total determined tax amount of KRW 199,905,880) of the disposition of this case

because the exceeding part is illegal, it must be revoked.

Although the Plaintiff’s assertion that the amount of the instant disposition is KRW 181,443,604 is not accepted, the part of the disposition in this case is revoked (i.e., KRW 199,905,880 (=147,688,140), and is equivalent to the amount of the tax that the Plaintiff seeks revocation (i.e., KRW 52,217,740 (=181,443,604 - KRW 181,443,60) - KRW 129,225,863, and KRW 10). As a result, the Plaintiff’s claim is entirely accepted.

4. Conclusion

Thus, the plaintiff's claim of this case reduced in the trial of the court is justified, and it is accepted, and

The judgment of the first instance court is unfair in conclusion with different conclusions, and thus, the appeal by the plaintiff is accepted and the judgment of the first instance is rendered.

The part against the plaintiff falling under any of the following cancellation orders shall be revoked, and the defendant shall revoke

A disposition of imposition of capital gains tax of KRW 80,920,158 on April 8, 2013 for the principal tax of capital gains tax of KRW 80,920,158.

The portion exceeding 62,920,158 won and the portion exceeding 4,543,807 won in the disposition of imposition of additional tax on negligent tax returns, and the amount exceeding 6,379,546 won, and the amount paid due to bad payment of capital gains tax for the year 202 as of April 23, 2013

in the disposition of taxing KRW 112,606,176, the amount exceeding KRW 80,224,176 shall be revoked, respectively.

(2) The decision is delivered with the assent of all Justices.