(영문) 서울고등법원 2008. 09. 11. 선고 2008누7146 판결

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Title

Summary

Related statutes

Text

Purport of claim and appeal

텍스트 조절

글꼴

크기(pt)

굵기

줄 간격

자간(%)

(영문) 서울고등법원 2008. 09. 11. 선고 2008누7146 판결

양도소득세 환급과 관련하여 편의를 제공해 주고 받은 대가가 기타소득인지 여부 등[일부패소]

Title

Whether the cost of giving and receiving convenience in connection with the refund of capital gains tax is other income;

Summary

It is reasonable to consider it as a honorarium received in return for the refund of capital gains tax, etc. and to determine the amount paid to the tax accountant in return for the refund of capital gains tax and the amount of the commencement fee paid to the tax accountant as expenses related to the same honorarium.

Related statutes

Article 21 of the Income Tax Act / [Other Incomes]

Article 87 of the Enforcement Decree of the Income Tax Act as necessary expenses

Text

1.The judgment of the first instance shall be modified as follows:

A. The Defendant’s imposition disposition of global income tax of KRW 70,690,600 against the Plaintiff on September 1, 2006, which exceeds KRW 9,329,40,00, shall be revoked.

B. The plaintiff's remaining claims are dismissed.

2. 20% of the total litigation cost shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

Purport of claim and appeal

1. Purport of claim

The Defendant’s disposition of imposition of global income tax of KRW 70,690,600 against the Plaintiff on September 1, 2006 shall be revoked.

2. Purport of appeal

The part of the judgment of the court of first instance against the plaintiff shall be revoked. The part equivalent to 52,502,200 won among the disposition of global income tax imposed on the plaintiff as of September 1, 2006 by the defendant against the plaintiff as of September 1, 2006 shall be revoked.

Reasons

1. Quotation of judgment of the first instance;

The court's explanation of this case is identical to the entry of the cause column of the judgment of the court of first instance, except for the dismissal of the cause column of the judgment of the court of first instance as follows. Thus, it is acceptable in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

2. Parts in height:

◦ 제3쪽 7번째 줄의 "80%로" ⇒ "80으로"

◦ 제3쪽 10번째 줄의 "[소득세법]" ⇒ "[소득세법(2006. 12. 30. 법률 제8144호로 개정되기 전의 것)]"

◦ 제3쪽 14번째 줄의 "신문 등의 자유와 기능보장에 관한 법률" ⇒ "정기간행물의 등록 등에 관한 법률"

◦ 제4쪽 아래에서 8번째 줄부터 제5쪽 5번째 줄까지의 기재를 다음과 같이 고침

First, in full view of the statements in Gap evidence 3-2, Gap evidence 4-2, witness 4, and the purport of the whole arguments in the testimony of ○○○○○○, it can be acknowledged that ○○○ was offered convenience by preparing a fact-finding certificate with respect to the deceased’s refund of the transfer income tax of this case, issuing a certificate of personal seal impression, etc., and the plaintiff paid ○○○○○ through three times between March 200 and September 200 for the above convenience provision. Thus, it cannot be deemed that the above amount out of the key amount was attributed to the plaintiff’s income, and therefore the plaintiff’s assertion about this part is reasonable.”

◦ 제5쪽 12번째 줄의 기재를 다음과 같이 고침

"(D) Therefore, 83 million won out of the key amount should be excluded from the amount of income of the plaintiff."

◦ 제6쪽 마지막 줄부터 제7쪽 2번째 줄까지의 기재를 다음과 같이 고침

"Justifiable tax amount of KRW 17 million recognized as other income out of the dispute amount is 9,329,400 (ber than KRW 10), such as the entry in the due tax amount column in the table of tax calculation of the attached tax amount, and thus, the part of the disposition in this case which exceeds the above legitimate tax amount is unlawful."

3. Conclusion

If so, the part of the disposition of this case which exceeds the above legitimate amount of tax shall be revoked in an unlawful manner, and the judgment of the court of first instance shall be revoked in part by accepting the plaintiff's appeal partially, and the judgment of the court of first instance shall be altered as ordered.

[Seoul Administrative Court 2007Guhap25787 (2008.01)]

Text

1. The Defendant’s imposition disposition of global income tax of KRW 70,690,600 against the Plaintiff on September 1, 2006 exceeds KRW 52,502,200 among the imposition disposition of global income tax of KRW 70,690,60 in 201 shall be revoked.

2. The plaintiff's remaining claims are dismissed.

3. Of the litigation costs, 75% is borne by the Plaintiff, and the remainder is borne by the Defendant.

Purport of claim

The Defendant’s disposition of imposition of global income tax of KRW 70,690,600 against the Plaintiff on September 1, 2006 shall be revoked.

Reasons

1. Circumstances of dispositions;

A. The non-party ○○○○ (the deceased on April 4, 2002) refunded KRW 266,557,000 (hereinafter “the transfer income tax of this case”) on January 10, 201. The director of the ○○○ Tax Office paid KRW 100,000,00 in return for the deceased’s attempt to refund the transfer income tax of this case (the key amount) out of the amount included in the taxable value of inheritance as a result of on-site investigation on the deceased’s claim for the refund of inheritance tax, as a result of the on-site investigation on the deceased’s claim for the refund of inheritance tax, the director of the ○○ Tax Office paid the Plaintiff KRW 1,00,000 in return for the deceased’s attempt to refund the transfer income tax of this case (the key amount becomes final and conclusive on June 16, 2005)’s decision and notified the Defendant of the outstanding amount as taxation data,

B. Accordingly, on September 1, 2006, the Defendant deemed the key amount as a honorarium and calculated the comprehensive income tax as shown in the attached Table of Calculation of Tax Amount by adding it to the Plaintiff’s revenue amount and global income amount, and notified the Plaintiff of the global income tax amount of KRW 70,690,600 for the global income tax for the year 2001 (hereinafter the instant disposition).

[Ground of recognition] Facts without dispute, Gap evidence 1-1, 2, 3, Eul's 1, 2, and 3

2. Whether the disposition is lawful;

A. The plaintiff's assertion

(1) The Plaintiff received the key amount from the Deceased and paid KRW 80 million to ○○○○○○○○, and used KRW 5 million for food and transportation expenses. As such, KRW 88 million out of the key amount is not attributable to the Plaintiff’s income, the instant disposition that recognized the Plaintiff’s income is unlawful in violation of the substance over form principle.

(2) The key amount the Plaintiff received from the Deceased is not a honorarium but a remuneration for temporary provision of services. Therefore, by applying Article 87 subparagraph 2 of the Enforcement Decree of the Income Tax Act, the necessary expenses should be recognized as 80/100 of the key amount. On the other hand, the instant disposition is unlawful against the mistake of taxable objects and the provision on deduction of necessary expenses.

2. Related statutes;

○ Article 21 of the Income Tax Act

(1) Other incomes shall be interest income, dividend income, business income, labor income, pension income, retirement income, and capital gains, as provided in the following subparagraphs:

15. Income received in the capacity of the original author for creative works of literature, art, music, or photography (including the inserting or cartoons inserted in periodicals under the Act on the Freedom of Newspapers, etc. and Guarantee of Their Functions, and translation of Korean creative works or classics into foreign languages or Korean) that falls under any of the following items:

A. Remuneration for writing;

(b) Royalties; and

16. Brokerage commission on a property right;

17. An honorarium;

19. Costs received for temporarily furnishing personal services (excluding those falling under subparagraphs 15 through 17) falling under any of the following items:

(a) Demotion services rendered to many persons without an employment relationship and receiving the consideration for lecture fuels, etc.;

(b) Services, such as commentation, enlightenment, or examination of performances, etc. on radio television broadcasts, etc. for remuneration or the price in the nature similar thereto;

(c) Services rendered by attorneys-at-law, certified tax accountant, certified tax accountant, certified architect, patent surveyor, patent attorney, or other persons of professional knowledge or special skill by utilizing his knowledge or skill; and

(d) Services other than those under items (a) through (c) provided without an employment relationship for allowances or other similar costs;

Article 27 (Calculation of Necessary Expenses)

(1) In the calculation of real estate rental income, business income, or other income, the amount to be included in necessary expenses shall be the sum of expenses corresponding to the total income in the relevant year, which is generally accepted as expenses.

(2) With respect to the expenses corresponding to the total amount of income prior to the relevant year, which are determined in the relevant year, only if they are not appropriated as necessary expenses prior to the relevant year.

(3) Matters necessary for calculation of necessary expenses shall be prescribed by Presidential Decree.

[Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 18173 of Dec. 30, 2003)]

Article 87 (Calculation of Necessary Expenses in Other Income)

75/100 (80/100 in case of subparagraphs 3 and 4) of the incomes or the temporary property incomes falling under one of the following subparagraphs which the resident receives shall be considered as necessary expenses:

2. Other incomes in Article 21 (1) 9 and 19 of the Act;

C. Determination

(1) As to the plaintiff's first argument

(A) In full view of the purport of the entire arguments with respect to the testimony of the witness ○○○○○ as stated in the evidence No. 3-2, the Plaintiff can be acknowledged as having paid the Plaintiff KRW 20 million in total on two occasions on March 200, in return for the provision of convenience, by preparing a demonstration certificate and issuing a certificate of personal seal impression, etc. with respect to the deceased’s refund of the transfer income tax of this case. As such, the Plaintiff’s assertion on this part is with merit.

However, with respect to the fact that the Plaintiff paid the remainder of 60 million won to ○○○○, it is difficult to believe that the testimony of ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○, which corresponds thereto, and it is insufficient to recognize it only by means of the written evidence Nos. 3-2 and the written evidence No. 78. In addition, since the Plaintiff alleged that the remainder of 60 million won was paid as a separate agreed amount, even if the above money was paid to ○○○○○○○○○, it would be deemed that the income accrued to the Plaintiff was paid as a separate agreed obligation of the Plaintiff’

(B) Next, there is no evidence to prove that the Plaintiff used five million won out of the key amount as food and transportation costs. Thus, the Plaintiff’s assertion on this part is without merit.

(C) Meanwhile, in full view of the statement No. 2 and the witness’s testimony, the Plaintiff received the issue amount from the Deceased and paid 3 million won among them as a retainer in relation to the claim for the refund of the transfer income tax of this case to Park ○, a certified tax accountant. As such, the Plaintiff’s assertion on this part is with merit.

(D) Therefore, 23 million won out of the key amount should be excluded from the amount of income of the Plaintiff.

(2) As to the second argument by the Plaintiff

(A) According to Article 21 (1) of the Income Tax Act, other income is determined as stipulated in each of the following subparagraphs as income from dividend income, income from real estate rental income, pension income, retirement income, and transfer income, and income is received as an original author for creative works belonging to literature, art, music, or photography under subparagraph 15 under subparagraph 16, which are the royalty for writing, under subparagraph 16, for the brokerage fees for property rights under subparagraph 17 to many people without an employment relationship under subparagraph 19, for the class 19, for the classical enlightenment, radio television broadcasting, etc. and for which the remuneration or other similar remuneration is paid to them (b), certified public accountants, certified public accountants, tax accountants, appraisers, patent attorneys, or other persons with special knowledge or special skills, and refers to the money for personal services (excluding the money under items (c) through (c) without an employment relationship or other similar remuneration for the class of services under subparagraph 15 (a) through 7, which is provided without a consideration for personal services (excluding the money under subparagraph 17).

(B) In this case, in full view of the statement No. 1-1 and the purport of the entire argument at the witness Park ○-○'s testimony, the Plaintiff may recognize the fact that the deceased requested a tax counsel to return the transfer income tax, etc. of this case on behalf of the deceased, who is an important customer of the National Agricultural Cooperative Federation ○○ Dong branch, and received the key amount from the deceased after requesting a tax accountant to return the transfer income tax of this case on behalf of the deceased, etc.

(C) Therefore, the first Plaintiff’s second assertion on a different premise is without merit without further examining the remainder.

(3) Justifiable tax amount

The legitimate tax amount of 77 million won, which is recognized as other income among the issues amount, is KRW 52,502,200, such as the entry in the due tax amount column in the table of tax calculation of the attached tax amount, and the portion exceeding the above legitimate tax amount among the dispositions of this case is unlawful.

3. Conclusion

Thus, the plaintiff's claim is partly accepted on the ground that it exceeds the above legitimate tax amount.

Table of Calculation of Tax Amount

(unit won)

Classification

Original Amount of Tax

Justifiable Tax Amount

Amount of increase or decrease

Revenue amount

179,310,776

156,310,776

-23,000,000