Cho-2017-China-4408 ( December 04, 2017)

Whether the calculation of deemed rent for rental at a low price for real estate is unjust or not;

In calculating the market price of the appropriate rent for the denial of wrongful calculation, it is premised on the deduction of the deposit for lease from the amount equivalent to 1/2 of the officially assessed individual land price of the real estate and the degree of contribution to the deposit is deducted. Therefore, the amount equivalent to the deemed rent in the process may not be again included in

Article 19 of the Income Tax Act

2018Guhap50431 Revocation of Disposition of Imposing global income tax, etc.

이@@

000 director of the tax office

September 20, 2018

November 1, 2018

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The Defendant’s global income tax (including additional taxes, hereinafter the same shall apply) for the year 2012 owed to the Plaintiff on August 1, 2017

4,300,410 won, global income tax for the year 2013, global income tax for the year 2013, global income tax for the year 2014

78,104,010 won, and 4,906,930 won of global income tax for the year 2015 shall be revoked.

1. Details of the disposition;

가. 원고, 이##(원고의 아버지), 장@@(원고의 어머니), 이**(원고의 동생)는 원

고가 대표이사인 @@@@산업 주식회사(이하 '@@@@산업'이라 한다)의 발행주식

100%를 소유(총 발행주식 9,300주 중 원고 3,906주, 이** 2,418주, 장@@ 및 이## 각 1,488주)하고 있고, 원고, 이##, 이**는 이##가 대표이사인 @@@@ 주식회사(이하 '@@@@'이라 한다)의 발행주식 100%를 소유(총 발행주식 50,000주 중 원고 및 이** 각 19,400주, 이## 11,200주)하고 있다. 한편 원고는 2006. 6.경부터 @@시@@구 @@동 @@@-@ 지상 건물에서 ##모텔(이하 '#모텔'이라 한다)이라는 상호로 숙박업을 하여 왔다.

나. 원고와 이**는 공동사업자(각 50% 지분)로 2012. 4. 9. @@@@에 @@시 @@구 @@동 &&&-& 외 2필지 토지(면적 합계 2,864㎡)를 임대차보증금 8억 5,000만 원

(차임 없음), 임대차기간은 12개월로 정하여 임대하고, 원고, 이**, 장@@은 공동사

업자(원고 지분 30.1%, 이** 지분 39.8%, 장@@ 지분 30.1%)로 2012. 3. 15. @@@@산업에 @@시 @@구 @@동 **** 외 3필지 토지(면적 합계 2,661㎡, 이하 이 각 토지를 통틀어 '이 사건 토지'라 한다)를 임대차보증금 7억 원(차임 없음), 임대차기간 12개월로 정하여 임대하였는데(이하 통틀어 '이 사건 임대차'라 한다), 이 사건 임대차관계는 계약상의 임대차기간 만료 후에도 계속 유지되어 왔다.

From 2012 to 2015, the Plaintiff’s total income tax shall be the amount equivalent to its equity ratio among the deemed rents by multiplying the deposit interest rate by the fixed deposit interest rate, as the rental income included in gross income pursuant to Article 25(1) of the Income Tax Act and Article 53(3)2 of the Enforcement Decree of the Income Tax Act

reported and paid.

C. The Defendant conducted a tax investigation on the Plaintiff from April 13, 2017 to May 2, 2017.

가 이**, 장@@과 공동사업자로 이 사건 토지를 특수관계인인 @@@@ 및 @@@@산업에 저가 임대한 것으로 보아 소득세법 제41조, 법인세법 시행령 제89조 제4항제1호에 의하여 별지 표 기재와 같이 계산한 임대료의 시가[(이 사건 토지의 개별공시

Of the difference between land price x 50/100 - fixed deposit interest rate x 0 won) and price (0 won), an amount equivalent to the Plaintiff’s equity ratio shall be recovered by omitting sales from the Plaintiff’s land rental business in this case. In 2014, the Plaintiff reported only part of the amount deposited into the Plaintiff’s account in the Plaintiff’s name, a business account in 2014 through 5%, 261,723 won in difference between the deposit amount and the reported amount, by deeming that the Plaintiff reported only a portion of the amount deposited to the Plaintiff’s account in 2014 sales from the 135,261,723 won in 2014.

D. The Defendant’s global income tax on the Plaintiff’s global income tax amount collected from each of the above sales omissions.

In addition to the tax base on August 1, 2017, the Plaintiff issued a correction and notification of the global income tax of KRW 4,300,410 for the year 2012, global income tax of KRW 6,543,840 for the year 2013, global income tax of KRW 78,104,010 for the year 2014, and global income tax of KRW 4,906,930 for the year 2015 (hereinafter “instant disposition”).

[Ground of recognition] Evidence Nos. 1, 2, Eul No. 1, and the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

1) In calculating the omitted amount of sales of the instant land rental business, the Defendant: (a) should have reported the deemed rent calculated by multiplying the fixed deposit interest rate by the lease deposit interest rate to the instant land as income; (b) however, the instant disposition was rendered by deeming such deemed rent as zero won for the instant land lease; and (c) the instant lease relationship cannot be deemed as a lease relationship with no fixed period of time following the expiration of the lease term under the lease agreement, and thus, the instant disposition was unlawful since the instant lease relationship was deemed to have been renewed on a one-year basis after the expiration of the lease term under the lease agreement.

2) The Defendant: (a) the %% per cent deposited in the business account of Metehermo in 2014; and (b) Metemoto.

The instant disposition was taken in view of the sales amount, and the % per cent is the business account of the Meteel in 2014.

에 입금한 금액에는 #모텔의 매출액 외에도 원고가 운영하는 #### 스크린골프장,

이**가 운영하는 *모텔, 이##가 운영하는 @@호텔의 매출액이 포함되어 있으므

Ro. The instant disposition is unlawful.

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

1) The leased real estate at a low price

A) Whether the deemed rent has been deducted

According to Article 19(1)12 of the Income Tax Act, the rental income generated from the real estate rental business is business income. In addition, according to Article 25(1) of the Income Tax Act and Article 53(3)2 of the Enforcement Decree of the Income Tax Act, where real estate is leased and the deposit is received, the amount calculated by multiplying the deposit by the interest rate for time deposit (hereinafter referred to as “inter-party rent”) shall be included in the gross income. As such, the rent received by the real estate rental business operator is the immediate amount of the rent, but the deposit received by the real estate rental business operator should be returned after the expiration of the lease term, and instead, the amount equivalent to the financial profit earned by the lessor from the operation of the deposit is included in the gross income under the name of deemed rent

According to Article 41 of the Income Tax Act, Articles 98 (2) 2 and 98 (4) of the Enforcement Decree of the Income Tax Act, and Article 89 (4) 1 of the Enforcement Decree of the Corporate Tax Act, where an asset is provided to a related party as a free or low rate which causes a difference between the market price and at least 300 million won, or at least 5/100 of the market price, such act or account shall be deemed a wrongful calculation that unreasonably reduces a tax burden on the income equivalent to the difference, and the difference between the market price and the actual transaction price may be calculated as income. In this case, the reasonable rent market price shall be equivalent to 50/100 of

In the meantime, Article 24 (2) of the Income Tax Act, Article 51 (5) 5 of the Enforcement Decree of the Income Tax Act, income, or income.

According to Article 89(2)2 of the Enforcement Decree of the Corporate Tax Act, which applies mutatis mutandis under Article 22-2 of the Enforcement Decree of the Corporate Tax Act, and Article 61(1)1 of the Inheritance Tax and Gift Tax Act, the market value of land is the officially assessed individual land price under the Act on the Public Announcement of Real Estate Values, and the fixed deposit interest rate shall be governed by Article 6 of the Enforcement Rule

According to the contents and purport of the above provision, in calculating the market price of the appropriate rent for the denial of wrongful calculation, the degree of contribution to the lease deposit shall be deducted from the amount equivalent to 1/2 of the officially assessed individual land price of the real estate as listed in the following table. Thus, the amount equivalent to the deemed rent shall not be again included in the actual rent in the process.

The method of calculating the market price of appropriate rents;

(50 per cent of the officially assessed real estate price - Deposit interest rate for fixed deposits = (50 per cent of the officially assessed individual land price deposit interest rate for real estate) - (Deposit Deposit Interest

B) Whether the denial of wrongful calculation based on the premise of implied renewal is legitimate

In principle, the application of the exclusion clause of wrongful calculation shall be determined at the time of the act, and the income tax is the period during which each taxable year occurs under Article 5 of the Income Tax Act.

However, by implied renewal of the lease contract under the Civil Code, the remaining lease terms are all the same.

Even if a lease without a fixed period of time is made under a non-fixed rental agreement, through several taxable periods;

When the lease relationship is maintained, the distribution of profits accrued therefrom shall continue to exist while the lease relationship is maintained.

Since the act of wrongful calculation through the non-exercise of the right to terminate the contract shall continue corresponding thereto.

reasonable rent to determine the denial of wrongful calculation. Therefore, the time of the reasonable rent to determine the denial of wrongful calculation

(A) In calculating the A, the individual subscription of the relevant assets as of the time of calculation vary in each taxable year;

It is reasonable to apply Si land price and time deposit interest rate.

2) The omission of sales in Meteel sales

In a lawsuit seeking revocation of tax imposition disposition, the tax authority bears the burden of proving the fact that the taxpayer's account of the financial institution constitutes sales or revenue, and the tax requirement of the amount omitted in the return is the principle that the tax authority must prove.

However, the taxpayer’s account of a financial institution can be presumed to constitute sales or income by either disclosing the fact that it can be presumed in light of the empirical rule in a specific lawsuit process or revealing indirect facts to acknowledge such fact. In such cases, whether such presumption can be determined can be mixed with sales or income in light of whether the account of the financial institution was used as a principal account or management account of sales or income subject to taxation, deposit date, counterpart, amount, etc., the proportion of sales or income-related transactions in light of the account’s transaction, etc., the ratio of sales or income-related transactions to sales or income-related transactions, and funds for other than sales

It should be determined by comprehensively taking account of various circumstances regarding the amount deposited in the account of the relevant financial institution, such as possibility and degree thereof (see Supreme Court Decision 2012Du7776, Jun. 23, 2015).

갑 제1호증의 기재에 변론 전체의 취지를 보태어 알 수 있는 다음과 같은 사정들, 즉 ① 원고는 자신이 **** 스크린골프장, %모텔, $$호텔 등을 다니면서 현금수입금을 수금하여 #모텔의 직원인 %%%에게 교부하면서 이를 #모텔의 현금수입금과 함께 #모텔의 사업용 계좌인 자신 명의의 계좌에 입금하게 하였다고 주장하나, #모텔과 **** 스크린골프장, %모텔, $$호텔의 경우 각각 별개의 사업용 계좌가 개설되어 사용되고 있는 만큼, 원고가 그 주장과 같이 **** 스크린골프장과 이**가 운영하는 #모텔, 이##가 운영하는 $$호텔의 현금수입금까지도 #모텔의 사업용 계좌로 입금하여야만 할 합리적인 이유를 찾기 어렵고, 원고의 주장을 뒷받침할 만한 객관적인 자료도 없는 점, ② %%%은 2014년에 %%% 명의의 계좌에 입금된 약 412,000,000원 중 약 251,000,000원을 1 ~ 2일 간격으로 137회에 걸쳐 #모텔의 사업용 계좌인 원고 명의의 계좌로 이체하면서 그 비고란에 현금수입금 수금 일자와 요일을 일일이 기재하였는데, 원고의 주장과 같이 #모텔의 현금수입금뿐만 아니라 **** 스크린골프장, %모텔, $$호텔의 현금수입금까지도 모두 %%%에게 교부하여 #모텔의 사업용 계좌로 입금하게 한 것이라면, 원고나 %%%으로서는 사업자가 원고, 이**, 이## 등으로 각각 다른 #모텔, **** 스크린골프장, %모텔, $$호텔의 각각의 현금수입금액을 구분할 필요가 있었을 것이고, 그럼에도 %%%이 위와 같이 현금 수입금 수금 일자와 요일을 특정하여 기재하면서도 위 각 사업장의 현금수입금액을 구분할 수 있는 조치를 하지 않았다는 것은 쉽사리 납득하기 어려운 점 등을 고려하면, %%%이 2014년에 #모텔의 사업용 계좌에 입금한 금액은 그 전부가 #모텔의 운영에 따른 매출액이라고 봄이 타당하다.

3) Whether the instant disposition is lawful

Under the premise that the lease relationship of this case was continuously renewed on a one-year basis after the expiration of the lease term under the lease contract, the reasonable rental price of the land of this case is calculated at KRW 0, while the actual rental fee of the land of this case is recognized as KRW 0, and the Plaintiff’s deposit in the business account of Meteher through 1% in 2014, and the difference between the amount of the Plaintiff’s deposit in the business account of Meteherur and the sales of Meteherur reported by the Plaintiff is legitimate.

3. Conclusion

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