Acquisition value and capital expenditure as necessary expenses to be deducted from the transfer value;

The acquisition value means the amount calculated by adding acquisition tax, registration tax, and other incidental expenses to the purchase value of assets purchased from a third person with the actual transaction price required for the acquisition of assets, and the capital expenditure means the expenses incurred in the actual increase of the value of land due to the expenses paid for the change, improvement or convenience of use of the relevant transferred assets,

Article 97 (Calculation of Necessary Expenses in Transfer Income Tax Act)

2012Gudan15770 Revocation of Disposition of Imposing capital gains tax

IsaA

○ Head of tax office

October 18, 2013

December 13, 2013

1. The Defendant’s imposition of KRW 0,000,000 (including additional tax of KRW 000,000,000) for the year 2009 on November 4, 2011 against the Plaintiff and the imposition of KRW 000,000 for the capital gains tax of KRW 00,000 for the year 200,000 on December 1, 2011 shall revoke the part exceeding the aggregate of the imposition of KRW 00,000 for the capital gains tax of KRW 00,000 for the year 209.

2. The plaintiff's remaining claims are dismissed.

2. 15% of the costs of lawsuit shall be borne by the Plaintiff, and the remainder 85% shall be borne by the Defendant.

Cheong-gu Office

The Defendant’s imposition of KRW 0,00,000 (including additional tax of KRW 000,000,000) and special rural development tax of KRW 00,000,000 on November 4, 2009 against the Plaintiff and the imposition of KRW 00,00,000 on capital gains tax of KRW 00,00,000 on December 1, 201, respectively, shall be revoked.

1. Details of the disposition;

A. The Plaintiff transferred 0,000,000 won (land acquisition value of 00,000,000,000 won + 00,000,000 capital gains tax for 00,000,000 won and 00,000,000,000 won, and 20,000,000,000,000,000,000,000,000,000,000 won and 0,000,000,000,000,000 won and 9,000,000,000,000,000,00 won and 339,339,000,00,000,000,000 capital gains tax, or 00,000,000,000 capital gains tax, as a result of land expropriation.

C. On January 27, 2012, when the Plaintiff filed a request for review with the Commissioner of the National Tax Service on January 27, 2012, the Plaintiff claimed that the actual transaction value of the instant land should be deducted as acquisition value, and KRW 00,000,000,000 shall be deducted as necessary expenses, and that the development cost of the instant land should be deducted as capital expenditure. The Commissioner of the National Tax Service decided on April 6, 2012, that the instant disposition “the tax base and tax amount shall be corrected according to the results of re-assessment as to whether the construction cost by item of the Plaintiff’s assertion is actually paid and whether it constitutes capital expenditure.”

D. On June 22, 2012, the director of the Seoul Regional Tax Office notified the Plaintiff of the determination of the content of the original notice as a result of re-investigation of capital gains tax.

Facts without dispute over the basis of recognition, evidence A1-1, 1-2, 2, 3, evidence B 1 and 2, and the purport of the entire pleadings.

2. The plaintiff's assertion

In acquiring the instant land, the Plaintiff spent a total of KRW 000,000,000, including the actual transaction value of KRW 000,000,000,000, and must be deducted as acquisition value. The Plaintiff spent KRW 0,000,00 in total for survey, powder construction, sporap truck, earth disposal, oil disposal, and labor cost, etc. to ensure the smooth operation of the instant land during the seven-year construction period after its acquisition, it should be deducted as capital expenditure.

3. Whether the disposition is lawful;

(a) Facts of recognition;

1) On March 3, 2001, the Plaintiff purchased the instant land No. 3 or 9 from AA to KRW 00 million, and March 24, 2001, the instant land No. 1 and 2 from AA, and KRW 00,000,000,000, from leapline. The Plaintiff paid KRW 00,000 as acquisition tax and registration tax related thereto.

2) The Plaintiff: (a) obtained permission for conversion of a mountainous district on a parcel of 14,550 square meters among the instant land, the land category of which was a forest and field; (b) changed the land category to a parking lot (○○○ 585-1, 585-2), or a warehouse site (○○ 585-3, 585-4), and disbursed the following expenses; and (c) as a result, the officially assessed land price increased.

Details of expenditure for expenses (unit: 00 won)

2003

204

205

206

2007

208

209

Total

dump trucks

345,219

419,503

143,350

74,995

95,688

1,400

1,080,155

Contract Projects

456,490

535,500

294,700

1,286,690

Skicker

177,140

382,328

36,860

205,408

142,578

10,000

1,254,584

Labor Expenses

34,670

191,960

90,900

95,040

212,880

27,060

150,000

692,510

Oil expenses

5,603

87,886

61,198

64,079

218,767

Dryryll

54,482

37,271

155,559

17,808

125,121

Powders

54,076

45,906

13,652

4,803

18,467

Miscellaneous expenses

11,094

14,160

3,457

17,040

68,318

7,924

152,295

Civil Petitions Treatment

59,000

10,000

20,000

25,000

114,000

Food expenses

12,134

15,621

2,332

15,460

7,944

73,491

Materials cost

679

14,534

766

560

6,539

Consolidateds

5,122,621

10,000,000 won deposited in the name of Kim Jong-so among the personnel expenses of** is excluded from contract costs.

Details of land category change and increase in the officially assessed individual land price.

Parcel Number

Date of Change

Land Category

Individual land price (won)

Area of a square meter;

Prior to Change

After the change

50

thereafter

○○ 585-1

8 March 8, 2006

Forest land

Parking Lots

13,400

200,000

3,213

○○ 585-2

8 March 8, 2006

Forest land

Parking Lots

16,800

200,000

6,687

○○ 585-3

January 21, 2009

Forest land

Warehouse Site

67,200

216,000

1,039

○○ 585-4

January 21, 2009

Forest land

Warehouse Site

15,100

216,000

3,611

3) While proceeding with the instant lawsuit, the Defendant imposed taxes, such as income tax and value-added tax, on the transaction partners, such as dump truck business operators or bits, in relation to the amount of income arising from the transaction with the Plaintiff.

Facts which have no dispute over the basis of recognition, entry and video of the evidence of Nos. 2, 4, 6, 7, 31, 37, 39 through 67 (including each serial number) and the purport of the whole pleadings.

B. Determination

1) Capital gains tax portion

According to the Income Tax Act and the Enforcement Decree thereof on the calculation of necessary expenses of the capital gains tax, and the acquisition value refers to the amount calculated by adding the acquisition tax, the registration tax, and other incidental expenses to the actual transaction value of the assets purchased from others as the actual transaction value required for the acquisition of the assets. The capital expenses refer to the expenses required for the actual increase of the value of the land in question, such as the expenses paid for the alteration, improvement, or use convenience of the use of the transferred assets. According to the above facts of recognition, the Plaintiff purchased the land in this case with the actual transaction value of KRW 00 million, and paid KRW 00,000,000 as acquisition tax and registration tax, and paid KRW 0,000,000 as the acquisition tax and registration tax. In addition, the land category has been reduced and the land category has been changed to the parking lot and warehouse site. Accordingly, the expenses required for this work is 00,000,000 won.

Therefore, the total amount of the capital gains tax to be paid by the Plaintiff is KRW 00,000,000, such as the "total amount of tax" item in the attached tax calculation table, and the portion exceeding the capital gains tax of KRW 000,000 among the disposition of this case should be revoked illegally.

2) Parts of special rural development tax

한편 을1호증의 기재에 따르니, 원고는 조세특례제한법 제77조 소정의 공익사업용토지에 대한 양도소득세 감면규정에 따라 1억원의 세액을 감면받은 사실을 인정할 수 있으므로, 「농어촌특별세법」 제3조 제1호에 따른 농어촌특별세의 납세의무자로서 제5조에 따라 감면받은 세액 1억원에 대하여 100분의 20의 세율을 적용한 00,000,000원에 별지 세액계산표 기재와 같이 계산된 납부불성실가산세 00,000,000원을 가산하여 산정된 농어촌특별세 00,000,000원을 납부할 의무가 있다. 그런데 피고는 2011. 11. 14. 원고가 000,000,000원(≒산출세액 0,000,000,000원 × 20%)의 양도소득세를 감면받을 것을 전제로 원고에 대하여 농어촌특별세 00,000,000원{=(감면세액 000,000,000원 × 0.2) + 가산세 00,000,000원 - 기납부세액 000,000원}을 부과하는 처분을 하였다가, 원고에 대한 양도소득세 감면 한도액이 1억원이므로 원고에게 농어촌특별세 29,814,194원을 부과하여야 함에도 착오로 과다하게 부과하였음을 이유로 2011. 12. 1. 2009년 귀속 양도소득세 000,000,000원을 추가로 부과하면서, 위 정당한 세액 00,000,000원을 제외한 나머지 00,000,000원을 감액, 통지한 사실을 인정할 수 있다.

Therefore, the part on which the Plaintiff imposed special rural development tax of KRW 00,000 on KRW 100,000 on the capital gains tax reduced or exempted under Article 77 of the Restriction of Special Taxation Act among the instant disposition following the Defendant’s reduction disposition is lawful.

4. Conclusion

Therefore, the plaintiff's claim is accepted within the scope of the above recognition, and the remainder is dismissed as there is no reason.