Whether the drop number of the construction cost of the building according to the standard market price of the building is legitimate when calculating the deemed rent.

Of the evidential data, where there is no necessary account book or lack of important part, which is the basis for estimation because it is extremely limited to the savings account receipt or tax invoice secured for objectivity among the evidential data.

Article 25 of the Income Tax Act (Special Cases for Calculation of Total Revenue)

1. The plaintiff's appeal is dismissed.

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

the Gu Office's place of service and place of service

The judgment of the first instance shall be revoked. Each disposition of the Defendant rendered against the Plaintiff on February 1, 2006, including KRW 5,455,816, global income tax for the year 1998, global income tax for the year 1999, global income tax for the year 199, KRW 5,610,828, and global income tax for the year 200,452,412.

The reasoning for this Court’s explanation concerning this case is as follows: (a) the evidence submitted additionally in the trial, which is insufficient to comply with the legitimacy of the actual construction cost as asserted by the Plaintiff in relation to the calculation of the amount equivalent to the construction cost for calculating deemed rent; and (b) the reasoning for the judgment of the court of first instance is the same as that of the judgment of the court of first instance, and thus, (c) the same shall be cited as it is in accordance with Article 8(2) of the Administrative Litigation Act

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

[Seoul Administrative Court 2006Guhap39772, August 16, 2007]

1. The plaintiff's claim is dismissed.

2. The plaintiff shall bear the litigation costs.

The Defendant revoked each disposition of global income tax of KRW 5,45,816 for the Plaintiff on February 1, 2006, global income tax of KRW 5,610,828 for the year 1999, global income tax of KRW 5,610,828 for the year 1999, global income tax of KRW 2,452,412 for the year 200 (the date of the written complaint on April 25, 2006 seems to be written in writing).

1. Details of the disposition;

The following facts are not disputed between the parties, or an objection may be acknowledged in full view of the whole purport of the pleadings in each entry of Gap evidence Nos. 1, 2, 1-1, 1-2, 2-2, 3-1, 2, 4, 5, 6, 11-1.

A. On November 2, 1996, the Plaintiff newly constructed a large-household housing unit of 11 households (hereinafter “instant real estate”) on the ground of ○○○○○-dong ○○○○○○-dong, ○○○○○-dong, ○○○○, ○○-dong, 243 square meters, and leased ten households from that time to that time, and transferred the instant real estate around July 19, 202.

B. As the Plaintiff did not report the rental income of the instant real estate, on February 1, 2006, the Defendant did not deduct the Plaintiff’s “the amount equivalent to the construction expense drop number” as stated in the attached Table 1, and instead imposed a global income tax of KRW 7,464,340, global income tax of KRW 7,547,730, global income tax of KRW 1999, global income tax of KRW 4,059,200 for the year 200.

C. On April 14, 2006, the Plaintiff filed an appeal by asserting that the amount of rental income should be calculated by calculating the amount of rental income actually paid by the Plaintiff as construction cost pursuant to Article 53(2) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 17032, Dec. 29, 2000; hereinafter the same shall apply). The Defendant: (a) ex officio on April 25, 2006, 410.2 square meters of the former Enforcement Decree of the Income Tax Act excluding the shared area of the leased multi-household house 118.46 square meters, as indicated in Table 1; and (b) calculated by applying Article 53(3) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 17032, Dec. 29, 200; hereinafter the same shall apply); and (c) calculated by applying the amount equivalent to global income of 310,0040,3050,0500.

Table 1: Details on the calculation of global income tax on April 25, 2006

The details of calculation of global income tax (excluding shared areas)

Standard market price per unit: 310,000 square meters/㎡, and electric resource area: 410.2 square meters.

Classification

1998

1999

200

(1) Complement number of rental deposit

200,741,000,000

184,392,00,000

186,408,000,000

(2) Complement number of construction costs

46,414,130,000

46,414,130,000

46,414,130,000

(3) Complement number (1-B)

154,326,870,000

137,977,870,000

139,993,870,000

(4) Interest rates

9%

7.5% by mass

7.5% by mass

(5) Rent (IIIX±365)

38,053,201

28,351,617

28,765,864

(6) Monthly rent revenues.

360,000

1440,000

2,880,000

(7) The sum of the rent revenues (n + us)

38,413,201

28,351,617

31,645,864

(8) Total amount of rental income (No. X45%)

17,285,940

13,406,228

14,240,639

(9) Labor income amount.

38,600,000

32,820,000

3,720,000

⑩소득금액합계(⑧+⑨)

5,885,940

46,226,228

17,960,639

(11) Income deduction.

8,490,000

10,439,00

6,600,000

⑫과세표준(⑩-⑪)

47,395,940

35,787,228

11,360,639

(13) Tax rate

30%

20%

20%

(14) The calculated tax amount (X3).

9,218,782

6,157,446

1,272,128

(15) Tax credit

600,000

600,000

159,900

(14-15)

8,618,782

5,557,446

1,112,228

⑰신고불성실가산세

839,356

501,863

254,425

⑱납부불성실가산세

419,678

2,559,650

1,085,760

⑲가산세합계(⑰+⑱)

1,259,034

3.101.513

1,340,185

⑳총결정세액(⑯+⑲)

9,877,816

8,658,959

2,452,413

(21) Withholding tax amount

4,422,00

3,048,130

(22)차갑징수세액(⑳-(21)

5,455,816

5,610,829

2,452,413

2. The plaintiff's assertion and judgment

A. The plaintiff's assertion

① The Plaintiff actually disbursed the construction cost of KRW 16,00,00 for design cost, KRW 410,80,00 for contracted construction cost, and KRW 143,404,217 for direct construction cost, and KRW 570,204,217 for the purpose of calculating the total amount of income. In calculating the total amount of income, the Defendant estimated the amount equivalent to the construction cost according to the net market price at the time of the new construction rather than the amount actually paid by the Plaintiff, and the Defendant calculated the amount equivalent to the construction cost by excluding the shared area even though the amount was included in the calculation of the amount of total income. Therefore, this prior disposition was unlawful.

(b) Related statutes;

Attachment 'Related Acts and subordinate statutes' shall be as shown.

C. Determination

(1) 추계의 적법 여부 (가) 구 소득세법(2000. 12. 29. 법률 제6292호로 개정되기 전의 것) 제80조 제3항은 납세지 관할세무서장 또는 지방국세청장은 당해연도의 과세표준과 세액을 결정 또는 경정하는 경우에는 장부 기타 증빙서류를 근거로 하여야 하되, 대통령령이 정하는 사유로 장부 기타 증빙서류에 의하여 소득금액을 계산할 수 없는 경우에는 대통령령이 정하는 바에 의하여 소득금액을 추계조사결정할 수 있다고 규정하고 있고, 구 소득세법 시행령 제143조 제1항은 추계조사할 수 있는 경우로서, 과세표준을 계산함에 있어서 필요한 장부와 증빙서류가 없거나 중요한 부분이 미비 또는 허위인 경우(제1호), 기장의 내용이 시설규모∙종업원수∙원자재∙상품 또는 제품의 시가∙각종 요금 등에 비추어 허위임이 명백한 경우(제2호), 기장의 내용이 원자재 사용량∙전력 사용량 기타 조업상황에 비추어 허위임이 명백한 경우(제3호)를 들고 있다. 위 각 규정을 종합하여 보면, 소득세의 과세표준과 세액은 실지조사방법에 따라 밝혀진 실액에 의하여 결정하는 것이 원칙이고, 추계조사방법에 의하여 이를 결정 또는 경정하려면 납세자의 장부나 증빙서류 등이 없거나 그 중요부분이 미비 또는 허위로 기재되어 신뢰성이 없고 달리 과세관청이 그 소득의 실액을 밝힐 수 있는 방법이 없는 때에 한하여 허용되는 것이라고 할 것이다. (나) 이사건에 관하여 보건대, 갑3 내지 14호증의 각 기재에 의하면 원고는 실제 건설비 지축액에 대한 증빙자료로서 공사도급계약서, 시설공사 내역서, 영수증, 입금표. 거래명세표, 무통장 입금증(5매 합계 35,017,000원), 세금계산서(11,442,925원) 등을 제시하고 있는 사실을 이정할 수 있는바, 위 인정사실에 나타나는 아래의 점들, 즉 원고가 제출한 증빙자료 중 비교적 객관성과 신뢰성이 담보되는 무통장 입금증, 세금계산서는 원고 주장의 전체 건설비 상당액 570,204,217원 중 합계 46,459,925원에 불과하고 영수증, 입금표, 거래명세표만으로는 건설비의 지급 여부가 명확히 확인되지는 않는 점, 이 사건 신푹공사의 건설비가 원고가 주장하근 것처럼 570,204,217원이라면 공사의 도급, 자금의 조달, 지출 등과 관련된 자료가 상당수 종재하여야 할 터인데 원고가 그와 같은 자료를 제출하지 못하는 점, 원고가 제출한 다른 자료만으로는 전체적인 건축공정과 관련하여 합리적으로 지출액의 정당성을 따지기는 어려워 보이는 점 등에 비추어 보면, 원고가 제출한 증빙자료만으로는 간주임대료 산정을 위한 건설비 상당액을 계산할 수는 없다고 할 것이므로, 구 소득세법 제80조 제3항, 구 소득세법 시행령 제143조 제1항 제1호에서 추계사유로 규정하고 있는 필요한 장부와 증빙서류가 없거나 중요한 부분이 미비 또는 허위인 경우에 해당한다고 할 것이다. 그러므로 이점을 다투는 원고의 주장은 받아들일 수 없다.

(2) Whether the sharing area is included

(A) Article 23(2)2 of the former Enforcement Rule of the Income Tax Act (amended by Ordinance of the Ministry of Finance and Economy No. 259 of Apr. 13, 2002) provides that the construction cost amount shall be calculated according to the formula of the purchase of real estate for rent, construction cost X-lease area/ total floor area of the building.

(B) However, it is reasonable to view that the total floor area of the above building includes the shared area such as the parking lot or machine room of the building; the person who has the right to use and profit from each shared part; and the lessor also is also deemed to have leased the shared area corresponding to the rental area ratio. Furthermore, in calculating the deemed rent, it is reasonable to reduce the amount equivalent to the construction cost corresponding to the deposit of the shared area because the drop number of the amount equivalent to the construction cost is deducted from the drop number of the deposit in calculating the deemed rent. In light of the fact that it is reasonable to reduce the amount equivalent to the construction cost corresponding to the deposit of the shared area

Therefore, the plaintiff's assertion disputing this issue is justified.

(3) Regarding the assessment of the standard market price

(A) Article 53 (3) of the former Enforcement Decree of the Income Tax Act provides that the drop number of the amount equivalent to the construction cost of rental real estate shall be calculated based on the standard market price under Article 99 of the Income Tax Act at the time of its acquisition, and Article 99 (1) 1 (b) of the former Income Tax Act (amended by Act No. 5994 of Dec. 28, 199) provides that the standard market price of a building shall be calculated based on the standard market price prescribed by the Presidential Decree. Article 164 (3) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 15138 of Dec. 31, 1996) provides that "value based on the standard market price prescribed by the Presidential Decree" means the value based on the standard market price stipulated in Article 80-2 of the Enforcement Decree of the Local Tax Act at the time of its construction.

(B) As to the instant case, the Defendant applied 310,000/m2, which is the standard market price of the newly constructed building in 1996 as of the year 2006. According to the statement of No. 10-1 of the evidence No. 10, the amount of taxation standard (standard market price) applied in 1998-2000 based on the year 1996, which was the year of the new construction of the instant building, can be recognized as having been KRW 134,00/m2, and thus, the Defendant erred in the application of the standard market price by the Defendant.

(4) Calculation of a reasonable amount of tax

In calculating the amount equivalent to the construction cost, the co-owned area shall be included in the leased area additionally, and when calculating the amount of tax by applying the standard market price of 134,000/m2, the standard market price shall be as follows:

Details of calculation of legitimate global income tax;

The details of calculation of global income tax (excluding shared areas)

Standard market price per unit: 310,000 square meters/㎡, and electric resource area: 410.2 square meters.

Classification

1998

1999

200

(1) Complement number of rental deposit

200,741,000,000

184,392,00,000

186,408,000,000

(2) Complement number of construction costs

25,856,760,600

25,856,760,600

25,856,760,600

(3) Complement number (1-B)

174,884,239,400

158,535,239,400

160,551,239,400

(4) Interest rates

9%

7.5% by mass

7.5% by mass

(5) Rent (IIIX±365)

43,122,141

32,757,734

32,989,981

(6) Monthly rent revenues.

360,000

1,440,000

2,880,000

(7) The sum of the rent revenues (n + us)

43,482,141

34,015,734

35,869,981

(8) Total amount of rental income (No. X45%)

19,566,964

15.307.080

16,141,491

(9) Labor income amount.

38,600,000

32,820,000

3,720,000

⑩소득금액합계(⑧+⑨)

58,166,964

48,127,080

19,861,491

(11) Income deduction.

8,490,000

10,439,00

6,600,000

⑫과세표준(⑩-⑪)

49,676,964

37,688,080

13,261,491

(13) Tax rate

30%

20%

20%

(14) The calculated tax amount (X3).

9,903,089

6,537,616

1,652,298

(15) Tax credit

600,000

600,000

159,900

(14-15)

9,303,089

5,937,616

1,492,398

⑰신고불성실가산세

66,266

697,897

30,460

⑱납부불성실가산세

488,109

2.93.508

1.273.762

⑲가산세합계(⑰+⑱)

1,154,375

3,691,405

1,604,222

⑳총결정세액(⑯+⑲)

10,457,464

9,629,021

3,096,620

(21) Withholding tax amount

4,422,00

3,048,130

(22)차갑징수세액(⑳-(21)

6,035,464

6,580,891

3,096,620

(5) Sub-committee

However, as seen in the above Table 2, the legitimate global income tax from 1998 to 2000 against the plaintiff (tax 6,035,464 won on global income for the year 1998, global income tax for the year 1999, global income tax for the year 6,580,891 won, global income tax for the year 2000, global income tax for the year 2000) is more than the disposition of this case. Thus, the disposition of this case does not include the sharing area in calculating the drop number of the amount equivalent to the construction expenses, and even if it is erroneous in the application of the standard market price without including the sharing area in the application of the standard market price, it is not unlawful.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.