Diab012 Mine816

It is recognized that the cost of building and land development works is deemed necessary expenses.

In order to construct a new building on the instant land to be used without compensation by the Plaintiff to a corporation whose representative was the Plaintiff, the construction of the building land was implemented by the corporate entity, and it cannot be confirmed whether the costs were actually paid by the Plaintiff, and not constituting necessary expenses for the instant land.

Article 95 [Transfer Income Amount] of the Income Tax Act, Article 163 [Necessary Expenses for Transferred Assets] of the Enforcement Decree of the Income Tax Act

2012Guhap3606 Disposition of revocation of concurrent holding of capital gains tax

Park AA

Head of the North Mine District Tax Office

October 17, 2013

November 21, 2013

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The imposition of additional tax on July 1, 201 and December 3, 2012 by the Defendant against the Plaintiff shall be revoked, respectively.

1. Details of the disposition;

가. 원고는 2004. 11. 26. OO도 OO군 OO읍 OO리 304 답 2，525㎡를 증여를 원인으로 취득하여 2005. 3. 8. 자신 소유인 같은 리 300-1 답 5，322㎡， 같은 리 303-1 답 1，612㎡와 합병하였다가 2005. 4. 7. 같은 리 304 답 2，998㎡， 같은 리 304-2 답 6，461㎡로 분 할하였다. 원고는 2006. 6. 14. 같은 리 304-2 답 6，461㎡를 같은 리 304-2 답 5，366㎡과 같은 리 304-3 답 1，095㎡로 분할하였다

나. 원고는 2009. 4. 16. 박BB에게 OO도 OO군 OO읍 OO리 304 공장용지 2，998㎡， 같은 리 304-2 공장용지 5，366㎡， 같은 리 304-3 답 1，095㎡(이하 차례대로 '제1토지'，'제2토지'， '제3토지'라고 한다)를 양도한 후， 2009. 6. 7. 2009년 귀속 양도소득세 확정신고를 하면서 양도가액을 OOOO원， 취득가액을 OOOO원， 필요경비를 OOOO원으로 신고하였다.

B. As a result of the investigation into the details of the Plaintiff’s return of capital gains tax, the Defendant determined that the spending of the OOO members among the necessary expenses was not objectively verified, and that the capital gains tax was corrected and notified as the OO members on July 1, 201. After November 30, 2012, the Defendant revoked the OO members equivalent to the additional tax of the capital gains tax, and imposed additional tax again by specifying the grounds for calculation on February 3, 2012 (hereinafter “instant disposition”).

C. On January 27, 2012, the Plaintiff filed an appeal with the Tax Tribunal on each of the instant dispositions, but the Tax Tribunal dismissed the Plaintiff’s claim on May 14, 2012.

[Standard for Recognition] The whole purport of the arguments, as described in the facts without dispute, Gap evidence 1, 11, and Eul evidence 1, 2, and 6 (including household numbers, hereinafter the same shall apply), and the whole arguments

2. Whether each of the dispositions of this case is legitimate

A. The plaintiff's assertion

In order to change the land category of the plaintiff 1 and 2 from the answer to the land for factory, the plaintiff paid OOOO won for the net construction cost + design cost + OOOOO, and less than 1,00 won for general management. This is the former Income Tax Act (amended by Act No. 9897 of Dec. 31, 2009, hereinafter the same shall apply) Article 97 (1) 2 of the former Income Tax Act, and Article 163 (3) 3 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 21934 of Dec. 31, 2009, hereinafter the same shall apply). However, each of the instant dispositions on different premise are illegal.

B. Relevant statutes

It is as shown in the attached Form.

C. Facts of recognition

1) 원고가 대표이사로 있던 주식회사 CCC(2009. 4. 22. DDD 주식회사로 상호 변경， 이하 'CCC'라고 한다)는 원고의 사용승낙을 받아 2005. 10. 10. 제1토지 지상에 일반철골구조 난열판넬지붕 단층 공장 332.5㎡， 경량철골구조 판넬지붕 단층 사무소 121.95㎡를 신축하고， 이에 관하여 소유권보존등기를 마쳤다.

2) CCC는 원고의 사용승낙을 받아 2006. 6.경 담양군수로부터 제2토지에 대한 공장용지 조성사업 인가와 농지전용허가를 받았고 2006. 7. 4.부터 2007. 5. 2.까지 제2토지에 대하여 공장용지 조성사업을 시행하였다 CCC는 2006. 7. 4. 담양군수로부터 건축허가를 받은 다음 제2토지 지상에 철골조판넬지붕 단층공장(숭가마) 500㎡， 철골조슬래브지붕 2층， 1층 전시장， 식당 338.23㎡， 2층 휴게실， 샤워실 323.83㎡， 철골조 판넬지붕 단층공장 및 창고 200㎡를 신축하였다.

3) On August 22, 2005, while on May 15, 2007, land category was changed to land for a factory in each answer.

4) CCC requested the Korea Economic Research Institute, a foundation, to calculate development costs for land No. 2, and as a result, development costs were calculated as OOO. CCC applied for the calculation of development charges in relation to land price increase that occurred in the process of creating land No. 2 as a factory site to the head of Yangyang Gun based on the result of the calculation of development costs.

5) On November 25, 2008, the head of Yangyang-gun recognized the net construction cost + design cost + general management cost + OOO, and servers less than KRW 1,000) as development costs, and notified CCC of the scheduled imposition of development charges, and imposed development charges on the Plaintiff, the owner of the second land, pursuant to Article 6(1)2 of the former Restitution of Development Gains Act (amended by Act No. 9538, Mar. 25, 2009).

[Standard for Recognition] The facts under dispute, Gap evidence 2 through 10, Eul evidence 3 through 5, and 8, and 9 (including household numbers, hereinafter the same shall apply), and the whole purport of the pleading

D. Determination

1) The burden of proving the tax base, which is the basis of taxation, is on the tax authority in a lawsuit seeking revocation of capital gains tax, and the tax base is deducted from necessary expenses, so the tax authority shall bear the burden of proving the transfer value and necessary expenses, in principle. However, since necessary expenses are more favorable to the taxpayer, and most of the facts generating necessary expenses are located in the territory under the control of the taxpayer, so the tax authority is difficult to prove, and if it is reasonable to allow the taxpayer to prove in consideration of the difficulty of proof or equity between the parties, it accords with the concept of fairness (see, e.g., Supreme Court Decisions 2007Du22955, Mar. 26, 2009; 2002Du1588, Sept. 23, 2004).

2) In addition to the above facts and evidence mentioned above, (i) CCC appears to have been able to know in addition to the purport of the entire arguments, (ii) the construction of the land as factory site, and (iii) the construction of the building on the land is deemed to have been accounted for at its own expense. (ii) CCC has performed the construction of the land as the project implementer with the approval of the land site development project for the second land from the Duyang head, and applied for the calculation of the development charges on the basis of the development costs, and accordingly, CCC has been notified of the determination of the development charges. However, the land owner imposed development charges on the plaintiff as the relation the plaintiff is the land owner, and (iii) it is difficult to see that the construction of the new building is considered to have significantly increased the utility value of the land, and that it is difficult to see that the construction cost of the new building falls under the capital expenditure of the building or improvement cost for the building on the land, or that the construction cost of the building is to be built on the land with the approval of another person to use the building site, and the construction cost of the building is not necessary.

Therefore, the plaintiff's above assertion based on this premise is without merit.

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.