Incheon District Court 201Guhap3504 (12 January 2, 2012)

Early High Court Decision 2010Du4030 ( October 21, 2011)

After the successful bid of a building, the former owner pays the management expenses in arrears and falls under necessary expenses.

It is reasonable to recognize it as necessary expenses, in light of the following: (a) although the building was sold at a successful bid; (b) the building management body neglected the management of the building due to the default on management expenses; (c) the delinquent management expenses are paid according to the decision of recommending settlement in the lawsuit filed by the management body; and (d) the expenses are not repaid due to the insolvency of the former owner; and (c)

2012Nu3608 Revocation of Disposition of Imposing capital gains tax

XX

the director of the tax office of Western

Incheon District Court Decision 201Guhap3504 Decided January 12, 2012

October 18, 2012

November 15, 2012

1. Of the judgment of the first instance court, the part against the plaintiff falling under the order to revoke below shall be revoked.

The Defendant’s disposition of imposition of capital gains tax of KRW 000 for the year 2007 against the Plaintiff on September 8, 2010, which exceeds KRW 000,000, shall be revoked.

2. The plaintiff's remaining appeal is dismissed.

3. 1/10 of the total costs of litigation shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

The judgment of the first instance is revoked. The part of the disposition that exceeds KRW 000 of the capital gains tax of KRW 000,000, which was imposed by the Defendant against the Plaintiff on September 8, 2010, is revoked (the Plaintiff corrected the purport of the claim in the appellate trial as above).

1. Details of the disposition;

A. On August 1, 2006, the Plaintiff acquired the instant building at a successful bid for KRW 000 in the voluntary auction procedure with respect to Yongsan-gu, Yongsan-gu, Yongsan-gu, 000 XXW 00 and 1000 (hereinafter “instant building”). On June 13, 2007, the Plaintiff sold the instant building at KRW 00 and completed the registration of ownership transfer with respect to the instant building under the name of ChoA on September 4, 2007. On May 27, 2008, the Plaintiff reported and paid KRW 00 of the capital gains tax for the year 2007 following the transfer of the instant building to the Defendant.

B. On September 8, 2010, the Defendant imposed KRW 000 of the transfer income tax for the year 2007, which was calculated by subtracting each of the above amounts from necessary expenses (hereinafter “instant disposition”) on the Plaintiff on the ground that the former owner B erroneously appropriated 000 won as necessary expenses and appropriated 000 won for the removal, remodeling, and remodeling expenses in excess of necessary expenses.

C. On November 25, 2010, the Plaintiff filed an appeal with the Tax Tribunal on the instant disposition, but the Tax Tribunal dismissed the Plaintiff’s appeal on April 21, 201.

[Reasons for Recognition] Facts without dispute, Gap evidence 1, Gap evidence 2-1, Eul evidence 1, Eul evidence 1, the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

In the auction procedure, the plaintiff could not exercise full ownership of the building of this case on the ground that the former owner did not pay the delinquent management expenses even after acquiring the building of this case, and under such circumstances, the plaintiff filed a lawsuit against the plaintiff for the management expenses claim against the plaintiff, and the plaintiff paid 00 won to the above creditor according to the court's settlement recommendation. Therefore, the above 00 won constitutes an "expenses added to the purchase value of the building of this case" under Articles 163 (1) 1 and 89 (1) 1 of the former Enforcement Decree of the Income Tax Act (amended by Act No. 9897 of Dec. 31, 2009; hereinafter the same shall apply) and Article 97 (1) 1 (a) of the former Income Tax Act, Article 163 (1) 1 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 22034 of Feb. 18, 2010; hereinafter the same shall apply) or an improvement expenses incurred in the transfer or improvement of the property of this case.

B. Relevant statutes

Attached Form 3 is as listed in the "relevant Acts and subordinate statutes".

C. Facts of recognition

1) On June 20, 2003, thisB acquired the instant building and operated a health club, swimming pool, indoor golf driving range, and sanda, etc. on the trade name of " XX", but the enemy accumulated and left the instant building while suspending the operation of the said Traice Center and leaving the instant building permanently. From October 17, 2003 to December 2, 2004, the attachment and provisional attachment based on various claims was executed. On the instant building, at the request of an OO agricultural cooperative, a mortgagee, the collective security right holder, the voluntary auction procedure commenced on December 2, 2004, and with respect to movable property, such as various collective equipment and fixtures within the said Traice Center, the provisional attachment and seizure was executed on August 23, 2005 and on January 20, 206.

2) The Plaintiff was awarded a successful bid of KRW 000 on June 21, 2006 with respect to the instant building on August 1, 2006 during the voluntary auction procedure with respect to the instant building, and paid the said price on August 1, 2006. The said price is the sum of the maximum debt amount of the right to collateral security established with respect to the instant building, and the amount much less than KRW 000,000, the amount of the claim amount of the OO agricultural cooperative

3) After a successful bid was made on August 7, 2006 and September 12, 2006, the Plaintiff sent a content-certified mail to urge the Plaintiff to take out the house and fixtures in the instant building and to settle the delinquent management expenses regarding the instant building at the domicile of the BB. However, the Plaintiff did not receive any answer from the BB. Meanwhile, on September 7, 2006, the Plaintiff allowed the KoreaPPPP cooperative (hereinafter “Lessee”) to lease the instant building at KRW 000 and KRW 000 per month so that the lessee can carry out remodeling facilities (repair facilities) construction.

4) According to Article 45 of the Management Rules of the Building to which the instant building belongs, where a sectional owner fails to pay management expenses by the due date, 5% of the administrative fine shall be additionally paid, and where a sectional owner fails to pay the delinquent amount within one month after the due date, 3% of the administrative fine shall be paid every one month, and where a sectional owner fails to pay management expenses for more than 2 months, the manager may take measures such as cutting electricity, water, waste, product Ban and access prohibition and other necessary measures by the resolution of the Representative Committee. Accordingly, the Management Committee of the XX Building (referred to as the Management Committee of the instant building; hereinafter referred to as the "Management Committee of the instant building") managing the instant building, on the ground that the Plaintiff acquired the ownership of the instant building, and the Plaintiff did not pay the total delinquent management expenses of the instant building, the Plaintiff may not request the above temporary owner to suspend the use of the instant building by cutting off or cutting off the instant management body on August 27, 2006, and the Plaintiff may not request the above provisional disposition 2016.

5) Despite the decision of provisional disposition above, the management body of this case, from October 25, 2006, took measures to suspend operation of the instant building again from October 25, 2006, and due to this, the Plaintiff was difficult to remove the house and equipment owned by this case B from outside. The lessee of the instant building was also affected remodeling work for the inside of the instant building.

In addition, around September 3, 2006, the management body of this case neglected the management of the building of this case, such as failure to take any measures on the ground that it would process the building of this case together with the delinquent management expenses related to the building of this case, even though there was a case where the above fee center signboard was set up on the outer wall of the building of this case and the signboard of another business place was set up on the site without permission.

6) In this process, the Plaintiff paid the instant management body KRW 00 on June 30, 2006, KRW 00 on July 10, 2006, KRW 000 on September 8, 2006, KRW 000 on November 14, 2006, KRW 00 on December 14, 2006, and KRW 00 on January 2, 2007 to the instant management body. However, the Plaintiff and the instant management body continued to dispute on the amount of the remaining management expenses in arrears between the Plaintiff and the instant management body, and the management body paid KRW 0 on January 9, 200 + KRW 0 on July 25, 200, the Plaintiff paid KRW 0 on the instant management expenses in arrears to the management body.

[Reasons for Recognition] Unsatisfy, entry in Gap evidence 3, 4, 7, and 16 (including each number, if any) and the purport of the whole pleadings

D. Determination

1) Whether the delinquent management expenses concerning the section for common use of the instant building constituted necessary expenses

In light of the following points, since the management fee for the section for common use of the building of this case paid by the plaintiff to the management body of this case constitutes "the expenses added to the purchase price under Article 97 (1) 1 (a) of the former Income Tax Act and Articles 163 (1) 1 and 89 (1) 1 of the former Enforcement Decree of the Income Tax Act", the expenses necessary for calculating gains on transfer of the building of this case should be deducted from the transfer price.

A) As to the above facts, during the auction procedure for the building of this case, this BB closed down the above skin center, left alone while leaving the building of this case. Based on the claim amount much higher than the value of the building of this case, the registration of creation of multiple collateral security, provisional seizure, attachment entry registration, etc. was made, and where the management expenses for common use of the building of this case such as the building of this case are in arrears, the special successor of an aggregate building shall succeed to the delinquent management expenses (see Supreme Court en banc Decision 18 and Supreme Court Decision 2001Da8677 delivered on September 20, 201). The plaintiff asserted that the bid price was determined by taking into account the above circumstances (the plaintiff is not only obligated to bear the management expenses for common use of the building of this case but also difficult to be repaid to the owner of the building of this case).

B) After the Plaintiff acquired the instant building at a successful bid, the instant management body takes measures such as cutting electricity, fractional and elevator operation interruption on the instant building on the ground that the former owner did not pay management expenses, and the Plaintiff neglected to manage the instant building, thereby causing serious trouble to the Plaintiff’s full use and profit-making of the instant building. This was the same after the order of provisional disposition prohibiting the use of the instant building was issued. Furthermore, the Plaintiff was liable to pay an administrative fine and additional dues in accordance with the management rules in the event that the former owner did not pay the delinquent management expenses. Accordingly, in order to acquire or exercise the full ownership of the instant building, the Plaintiff had to pay the delinquent management expenses for the section for common use of the instant building to the instant management body.

C) The security deposit returned by the successful bidder of the real estate which is the object of the right of lease with opposing power to the lessee can be deemed as the price required for the acquisition of the real estate, and thus, it shall be calculated as the acquisition value of the real estate (see Supreme Court Decision 92Nu11954, Oct. 27, 1992). In general, when the successful bidder of real estate has repaid the claim secured by the lien holder pursuant to Article 91(5) of the Civil Execution Act, the said repayment amount is recognized as necessary expenses to be deducted from the transfer value (see, e.g., Seodaemun Internet Visit Counseling Team 4-444, Feb. 22, 2008, the National Tax Service questioning the question at the National Tax Service). In comparison, it is reasonable to deduct the delinquent management fees for common area of the building of this case where

D) It seems impossible for the Plaintiff to receive reimbursement from the B because the former owner of the instant building was insolvent, and the Plaintiff was not able to receive reimbursement of the delinquent management fee paid to the instant management body from the B. In fact, the Plaintiff is not able to receive reimbursement of the delinquent management fee. As such, the above delinquent management fee, which can be viewed as having become final and conclusive that there is no possibility to receive reimbursement from the B, should be considered as “the incidental expenses added to the purchase price” and should be considered as necessary expenses deducted from the transfer value (see Supreme Court Decision 85Nu594, Feb. 25, 1986).

(ii) a reasonable amount of tax;

If the plaintiff includes 000 won of the delinquent management expenses paid in the necessary expenses and deducts them from the transfer value, the reasonable transfer income tax amount to be additionally paid by the plaintiff shall be 000 won as shown in the attached sheet.

3) Sub-determination

Therefore, the part exceeding KRW 000 among the disposition of this case should be revoked in an unlawful manner.

3. Conclusion

Therefore, the plaintiff's claim shall be accepted within the scope of the above recognition, and the remaining claims shall be dismissed without any justifiable reason. Since the court of first instance partially accepted the plaintiff's appeal and the part against the plaintiff, which constitutes the order to revoke under the judgment of the court of first instance, shall be revoked, and the part which exceeds 00 won out of the disposition of this case shall be revoked, and the remaining appeal of the plaintiff shall be dismissed as it is so decided as per Disposition.