The amount received in excess of the requested value (title of licensed real estate agent) shall be included in the transfer value and deemed the brokerage commission.

Even if the premium received by a licensed real estate agent in excess of the amount requested by the licensed real estate agent due to delegation belongs to the licensed real estate agent, the transfer value is included in the transfer value, and the amount additionally paid other than the brokerage commission prescribed by the Act on Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions

The contents of the decision shall be the same as attached.

Article 97 (Calculation of Necessary Expenses for Transfer Income Tax)

1. The Defendant’s imposition disposition of capital gains tax of KRW 32,447,520 against the Plaintiff on May 1, 2007 exceeding KRW 12,79,180 shall be revoked.

2. The plaintiff's remaining claims are dismissed.

3. One-third of the costs of lawsuit shall be borne by the defendant by the plaintiff 2/3.

The Defendant’s disposition of imposition of capital gains tax of KRW 32,447,520 against the Plaintiff on May 1, 2007 is revoked.

1. Circumstances of the disposition;

가. 원고는 2001. 8. 30. 부천시 원미구 ○동 517-4 토지 222.1㎡의 택지분양권(이하 '이 사건 분양권')을 149,850,000원에 분양받아 계약금 14,985,000원을 납부한 상태에서 2001. 11. 29. 김★★에게 양도하였다.

B. On December 8, 2001, the Plaintiff reported to the Defendant that there is no gains from transfer by transferring the tax base of transfer income to KRW 14,985,000, which constitutes the pre-sale contract.

다. 피고는 2007. 5. 1., 원고가 김★★로부터 프리미엄 41,100,000원을 합한 56,085,000원을 받고 이 사건 분양권을 양도하였다는 이유로 양도차익을 41,100,000원 으로 산정한 후 그에 따른 양도소득세 32,447,520원을 부과하여 고지하였다(이하 '이 사건 처분').

[Ground of recognition] Facts without dispute, entry of Eul 1 and 2 evidence (including paper numbers), the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's principal

The Plaintiff only requested the sale of the instant parcelling-out right at KRW 20.00,000,000, and the real estate real estate agent, etc. who received the request for sale, sold at KRW 41,100,000,000, and delivered KRW 20,000,000,000,000,000,0000,000,0000,000,000,000,000,000,000,000, in total, was the transfer value of the instant parcelling-out right. From the transfer value, the acquisition value of the instant parcelling-out right is KRW 14,985,00,00,000, and the brokerage fee is KRW 3,00,00,000,000, which was deducted from the actual cost of KRW 485,005,00,00,000. Therefore, the instant disposition was unlawful.

(b) Related statutes;

It is as shown in the attached Table related statutes.

(c) Fact of recognition;

(1) On September 30, 2001, the Plaintiff requested the sale of the right to sell the instant case to △△△ real estate brokerage assistant, △△△△△△, and received KRW 20,000,000 from the premium, but exceeded KRW 20,000,000, the Plaintiff was able to become a real estate real estate agent, etc.

(2) 2001. 11. 8.경 원고를 중개ㆍ대리한 견◎◎는 김★★를 중개ㆍ대리한 ◆◆부동 산의 공인중개사와 사이에 이 사건 부동산에 관하여 매매대금을 56,085,000원(기납부 분양계약금 14,985,000원, 프리미엄 41,100,000원, 나머지 미분양대금은 김★★가 승계) 으로 정하여 매매계약을 체결하였다.

(3) 매매대금 56,085,000원 중 31,500,000원(2001. 11. 8.경 4,000,000원, 2001. 11. 29.경 27,500,000원)은 원고에게 전달되었고, 나머지 24,585,000원(중개수수료 3,000,000원, ◇◇부동산이 지출한 비용 485,000원, 초과 프리미엄 21,100,000원)은 ◇◇부동산 공인중개사와 중개보조원 및 ◆◆부동산의 공인중개사 등이 나누어 가졌다.

[Ground of recognition] Each entry of Gap 1, 3, 4, and 5 (including the number of a branch), witness shot, and the purport of the whole pleading

D. Determination

(1) Transfer value

According to the above facts of recognition, since knife knife entered into a sales contract on the instant sales right on behalf of the Plaintiff legally on behalf of the Plaintiff, 56,085,000 won paid as the purchase price for the instant sales right shall be deemed to have been reverted to the Plaintiff, the seller. Therefore, the transfer price of the instant sales right is 56,085,000 won.

(2) Necessary expenses

(A) The acquisition value of the sale right of this case is 14,985,000 won and is equivalent to the necessary cost.

(B) Article 97 (1) 4 of the Income Tax Act and Article 163 (5) 1 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 19890, Feb. 28, 2007) are deemed necessary since the money was paid for the purpose of transferring the instant sales right, it constitutes necessary expenses prescribed in Article 97 (1) 4 of the Income Tax Act and Article 163 (5) 1 of the former Enforcement Decree of the Income Tax Act.

(C) The Plaintiff’s excessive premium of KRW 21,100,000 shall be deemed to have been paid to ○○ Real Estate. This is considered to have been paid by a licensed real estate agent in addition to brokerage commission under the Licensed Real Estate Agents’ Business Affairs and Report of Real Estate Transactions Act, since the real estate agent added KRW 20,00,000 to the sales price of the instant sales right, it appears to have been paid additionally in addition to brokerage commission under the Licensed Real Estate Agents’ Business Affairs and Report of Real Estate Transactions Act. As long as this falls under brokerage commission, even if the amount exceeds the amount of legal brokerage commission or accounts for a considerable portion of the sales price, the total amount constitutes necessary expenses (see, e.g., Supreme Court Decision 85Nu322, Oct. 22, 1985).

(d) Accordingly, the necessary cost, including acquisition value, is the sum of 39,570,000 won.

(3) Calculation of a reasonable tax amount

The gains from the transfer of the ownership of this case are KRW 16,515,00 (transfer value 56,085,000 - necessary expenses 39,570,000). Accordingly, the transfer income tax calculated accordingly will be KRW 12,79,180, such as the entry of the tax invoice in attached Form.

3. Conclusion

Therefore, the part of the disposition of this case exceeding 12,79,180 won, which is the above legitimate tax amount, is unlawful. Thus, the plaintiff's claim of this case of this case is accepted within the scope exceeding 12,79,180 won, which is the above legitimate tax amount, and the remaining claim is dismissed as it is without merit