Seoul Administrative Court 2009Guhap24504 ( October 16, 2009)

Cho High Court Decision 2009Du0133 (No. 28, 2009)

Special long-term holding deduction for a real estate sales businessman shall not be included in necessary expenses.

A special long-term holding deduction for a real estate sales businessman is not prescribed as necessary expenses, and the special long-term holding deduction is not included in necessary expenses under the Income Tax Act.

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

1. The plaintiff's appeal is dismissed.

2. Costs of appeal shall be borne by the Plaintiff.

Purport of claim and appeal

The judgment of the first instance shall be revoked. The defendant's rejection disposition against the plaintiff on July 25, 2007 shall be revoked as to the global income tax of 769,287,187 won and the global income tax of 166,730,447 won and the global income tax of 2005.

1. Acceptance of a judgment of the court of first instance;

The reasoning for this Court’s reasoning is as follows, except for adding the following judgments to the Plaintiff’s assertion in the trial room, and thus, it is identical to the partial entry of the reasoning for the judgment in the first instance. Thus, this Court cited it as it is in accordance with the main text of Article 8(2) of the Civil Procedure Act.

[Supplementary Parts]

In light of the fact that the long-term holding special deduction system introduced by a real estate broker as above should be equally applied at the time of calculating the profit margin of a real estate broker, which is not an interim prepayment system of global income tax, is similar to the preliminary return and voluntary payment system of tax base of transfer income, but the profit margin at the time of final return of global income tax is different from that at the time of final return of global income tax. However, the profit margin at the time of the preliminary return of profit margin is different from that at the time of final return of global income tax, which is not different from that at the time of final return of transfer income.Third, in the case of a real estate broker, there is no provision that the long-term holding special deduction should be reduced as necessary expenses, but there is no provision that the tax amount of the preliminary return of transfer income should be reduced to the amount of tax calculated at the time of final return of transfer income.

① The special deduction for long-term holding of real estate was introduced to alleviate the tax burden on an individual who does not aim at business profit as a taxable object of capital gains tax, and it is difficult to view that the special deduction for long-term holding of real estate was applied to the real estate sales broker who acquired and transferred real estate for the purpose of profit without any separate tax law. The provisional return for holding of real estate and the voluntary payment system of the real estate sales broker cannot be deemed as the same as the preliminary return for capital gains tax and the voluntary payment system.

② The claim is similar to the interim prepayment system of global income tax. The real estate sales businessman must make a final return of global income tax even when the scheduled return of profit margin was implemented, and the tax base and tax amount are not immediately determined by the scheduled return of profit margin of the real estate sales businessman. ② The claim is without merit.

(3) The argument is that there is no Act that prescribes the special long-term holding deduction for health stand and real estate sales businessman as necessary expenses, and the special long-term holding deduction is not included in the necessary expenses items under the Income Tax Act, but in Article 107 of the Income Tax Act, it

④ In the event that claims are paid on a health account, the provision on special deduction for long-term holding, which deducts a certain percentage of the amount of tax payable, cannot be deemed as having any disadvantage in itself, on the ground that the provision on special deduction for long-term holding, which in turn applies at the time of the preliminary return of the real estate sales broker. Furthermore, in the case of the real estate sales broker, there is a provision on special deduction for long-term holding, as long as there is no provision on special deduction for long-term holding only at the time of the preliminary return, the amount of tax credit for fixed-term holding is reduced, but the amount of tax credit for the real estate

2. Conclusion

Therefore, the judgment of the first instance court is legitimate, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.