early 209Gu1711 (2009.06.09)

A joint businessman may not be excluded from the object of the lease business even if the lease service has been provided to one of the joint businessmen.

The fact that part of co-owned real estate has been provided to one joint proprietor of a real estate rental business as an office for another business operated by one joint proprietor of a joint proprietor cannot be excluded from the object of a real estate rental business. This is the same even if the joint proprietor of a joint proprietor is a couple.

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

1. The plaintiff's claim is dismissed.

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

The Defendant’s imposition of global income tax of KRW 1,397,150 for the year 2003 against the Plaintiff on January 2, 2009, global income tax of KRW 1,143,100 for the year 204, global income tax of KRW 1,295,520 for the year 204, global income tax of KRW 1,143,100 for the year 2005, global income tax of KRW 1,030,200 for the year 206, global income tax of KRW 1,623,920 for the year 207 is revoked.

1. Details of the disposition;

A. The Plaintiff and her husband, as co-owners of the 663-1 underground floor and the 5th ground-based building located in Daegu Suwon-gu BB Dong (hereinafter referred to as the “instant building”), owns 1/2 shares.

B. On December 1, 1994, the Plaintiff and thisA made a business registration using the name ofCC building, business operator as real estate business for the purpose of carrying on a real estate leasing business in the instant building, and then reported and paid comprehensive income tax on rental income from leasing the second and fifth floors of the instant building to others.

C. On the other hand, around November 8, 1988, thisA had registered a Council member, a business operator, and a type of business as a public health business for the purpose of operating only one Council member on the first floor of the instant building, and thereafter has operated only one Council member in the 1st floor of the instant building (hereinafter “instant store”).

D. The Defendant: (a) calculated the amount equivalent to 1/2 out of the rent of the instant store from 2003 to 2007 under Article 41(1) of the Income Tax Act and Article 98(1)1 and 98(2)2 of the Enforcement Decree of the same Act (hereinafter “instant disposition”) by adding the amount equivalent to 4,920,000, and 6,870,007 to the real estate rental income amount of the Plaintiff’s real estate rental income; (b) calculated on January 2, 2009 by adding the amount equivalent to 1/2 of the Plaintiff’s share in the instant store to the Plaintiff, who is the husband.

[Ground of recognition] Facts without dispute, Gap evidence 1 to 3, Eul evidence 1 to 9 (including branch numbers; hereinafter the same shall apply) and the purport of the whole pleadings

2. The assertion and judgment

A. The plaintiff's assertion

(1) Since the store of this case was provided for a single Council member from the time of construction of the building of this case, it should be excluded from the object of real estate rental business, and therefore, apart from whether the store of this case is subject to gift tax on this case, the disposition of this case on the premise that the store of this case constitutes the object of real estate rental business is unlawful.

(2) Even if the store in this case is the object of the real estate rental business, the Plaintiff’s rental profit is the necessary expenses of thisA. Therefore, (In conclusion, the Plaintiff, the husband, and thisA, together with the Plaintiff, cannot be deemed to have unjustly reduced the tax burden on income, and thus, shall not be subject to the avoidance of wrongful calculation.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

(1) Whether the store of this case is excluded from the object of real estate rental business

The fact that part of co-owned real estate has been provided to a joint proprietor of a real estate rental business as an office for another business operated by one of the joint operators of a joint proprietor of a real estate rental business cannot be excluded from the object of the real estate rental business. This is the same even if the joint proprietor of a joint proprietor is a couple. Therefore, the plaintiff's assertion on this part

Furthermore, even if the purport of this part of the Plaintiff’s assertion is that this part of the Plaintiff’s claim is solely owned by this case’s store by transferring the Plaintiff’s 1/2 shares to this case’s store, the mere fact that this case’s store has been operated by this case’s store is insufficient to acknowledge the above assertion, and there is no other evidence to acknowledge this differently, and therefore, the Plaintiff’s above assertion does not seem to have any reason.

(2) Whether the calculation is subject to the avoidance of wrongful calculation

The issue of whether the tax burden has been reduced unfairly shall be based on the party imposing the tax, and as long as the tax burden has been reduced by the party concerned, it shall be subject to the avoidance of wrongful calculation even if the tax burden has not been reduced by all related parties (see, e.g., Supreme Court Decision 97Nu13184, Feb. 11, 200). Therefore, the plaintiff's assertion on this part shall also be without the need for further examination.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.