Cho Jae-2017-China-2932 ( October 19, 2017)

money received for the purpose of removal shall not be the money for transfer, but the reward.

It is not the transfer price which the plaintiff received in return for the removal of the building, not the transfer price which is deferred by the fact that the contract is paid under the condition of removal, there is no content that the building is transferred, the balance is agreed to be paid at the same time with the removal of the building, and the transfer price is paid.

Article 21 of the Income Tax Act

2018Guhap1090 global income and revocation of disposition

leAA

BB

July 24, 2018

August 28, 2018

- Text -

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The Defendant’s disposition of imposition of global income tax of KRW 27,094,450 on April 19, 2017 against the Plaintiff was revoked.

- - Grounds

1. Details of the disposition;

A. The Plaintiff owned a 118.08 square meters in a stable, a building not registered on the ground of AA, AA, 000-00 square meters (hereinafter “instant land”), and 42.12 square meters in a warehouse and a manager (hereinafter “the instant building”).

B. On May 12, 201, the Plaintiff entered into an agreement with thisA with the following terms (hereinafter “instant agreement”) and received KRW 100,000,000 from thisA (hereinafter “instant agreement”).

C. On June 10, 2011, thisA completed the registration of ownership transfer based on sale on April 21, 2011 with respect to the instant land to thisB.

D. On April 19, 2017, the Defendant notified the Plaintiff of the payment of global income tax of KRW 27,094,450 (including additional tax) on the ground that “the instant agreed amount constitutes a honorarium among other income under Article 21(1)17 of the Income Tax Act” (hereinafter “instant disposition”).

[Reasons for Recognition] Unsatisfy, Gap evidence 1 to 3 (including each number), Eul evidence 1 to 3, the purport of the whole pleadings

2. Determination on the legitimacy of the instant disposition

A. The plaintiff's assertion

1) Even if thisA was transferred to the buyer for the purpose of removing the instant building, since the instant agreed amount was the money paid in return for the transfer of ownership of the instant building, it should be deemed as the purchase price for the instant building. Therefore, the instant disposition that deemed the receipt of the agreed amount as other income, not capital gains, is unlawful.

2) Even if the contract amount of this case is other income, the part corresponding to the objective value of the building of this case falls under the transfer price, and only the part in excess thereof falls under the honorarium among other income. Since the defendant did not consider this, the part of the contract amount of this case which can be viewed as the transfer price among the disposition of this case is unlawful.

B. Relevant statutes

Income Tax.

Article 21 (Other Incomes)

(1) Other incomes are interest income, dividend income, business income, labor income, annuity income, retirement income and income other than capital gains, which are prescribed in the following subparagraphs:

17. An honorarium;

C. Determination

1) Article 21(1)17 of the Income Tax Act refers to money and valuables provided as a means of a case in connection with administrative affairs or provision of services, etc., and whether it constitutes such money and valuables ought to be determined by comprehensively considering the motive and purpose of receiving the money and valuables, relationship with the other party, amount, etc. (see, e.g., Supreme Court Decision 2016Du55247, Feb. 9, 2017).

2) If we look at the following facts and circumstances revealed through the process of the above disposition and the evidence revealed earlier, the contract amount of this case shall be deemed to be 'the honorarium paid as compensation for removing the building of this case and delivering the land of this case to EA, a landowner, in the state of a site.' Thus, the plaintiff's assertion is not accepted.

A) The Plaintiff and thisA agreed that “the instant contract amount shall be paid to the Plaintiff as compensation for the condition of removing the instant building upon the request of the Plaintiff to remove the instant building due to the sale of the instant land.” The instant contract amount is merely a compensation for the removal of the instant building, and there is no finding that the instant building is relocated to thisA.

B) The Plaintiff asserted that this case’s building was acquired for the purpose of removing the instant building and then removed it. However, the Plaintiff and thisA agreed to pay compensation on the condition of removing the instant building, and that the remainder shall be paid simultaneously with the removal. It is reasonable to deem that this case’s building was not removed after the acquisition of the instant building, but that the Plaintiff agreed to pay the agreed amount for the price of removing the instant building.

C) The standard market price of the instant building is KRW 1,180,800,000, the instant contract amount is more than 80 times the standard market price of the instant building, and it is difficult to view the instant contract amount as the price for the transfer of the instant building.

D) On April 21, 201, prior to the conclusion of the instant agreement with the Plaintiff, thisA had already concluded a sales contract with the BB on the instant land, and thus, it is reasonable to deem that the instant building was not taken over, but the instant building was removed to deliver the instant land, which is the site of the instant building, and that the instant agreement was concluded with the Plaintiff to deliver the instant land.

E) As seen earlier, the instant agreement is not for the purpose of moving the instant building, but for the purpose of moving the instant building, this does not require the instant building and thus, it cannot be deemed that the Defendant erred by deeming the entire amount of the instant agreement as an honorarium and making the instant disposition.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit, and it is so decided as per Disposition.

(c)