Cho Jae-2017-west-3461 ( October 16, 2017)

No depreciation compensation can be deemed to include the depreciation compensation in the amount of expropriation of real property.

The compensation for a loss caused by the expropriation of real estate shall not be deemed to include the compensation for the loss caused in the course of the relocation of trees, fountains, liquids, etc.

Article 96 of the Income Tax Act

2018Gudan50942 Revocation of Disposition rejecting capital gains tax rectification

○ Kim

○ Kim

○ ○

○ Head of tax office

March 19, 2019

April 30, 2019

1. All of the plaintiffs' claims are dismissed.

2. The costs of lawsuit are assessed against the plaintiffs.

Cheong-gu Office

The defendant's rejection disposition against the plaintiffs on April 24, 2017 is revoked.

1. Details of the disposition;

A. The plaintiffs owned real estate (hereinafter referred to as "real estate of this case") as shown in the separate sheet within the business area of ○○○○ Housing Redevelopment Improvement Project (hereinafter referred to as "the rearrangement project of this case"), and the plaintiffs KimA was constructing and operating a temple called ○○○○ ○○ ○○ ○ ○ ○ ○ ○61-1, ○ ○○ ○ ○ ○ ○ ○ ○ ○61-1, and operated the parking lot jointly with the plaintiffs on the same ground.

B. The value of the instant real estate (excluding the real estate stated in paragraphs (d) and (e) and (2) of attached Table 1) was assessed to be KRW 2.613 billion in the appraisal that the instant rearrangement project owner requested for a compensation consultation. In addition, the value of the instant real estate was assessed to be KRW 2.61 billion in total, the compensation for business suspension for the parking lot business (not less than KRW 12.6 million), the cost for the relocation of the ○○○○’s facilities (not less than KRW 9 million), the trees transferred from the ○○○○3 Dong ○○○ ○61-1, ○○○ dong ○61-1 (hereinafter “the instant trees, etc.”) and the cost for relocation (including approximately KRW 18.4 million in total, including the above compensation for business suspension, relocation of facilities, and relocation of facilities) was assessed to be approximately KRW 40 million in total.

C. The subject of the instant improvement project filed a lawsuit against the Plaintiff KimA seeking the delivery of the instant real estate to the ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○, ○61-1, ○○○○○-dong, ○61-1, (hereinafter referred to as the “instant extradition lawsuit”).

D. The extradition suit of this case was submitted to the ○○○○○ District Court 201 ○○○○○○○○○○○○○○○○○○○, and the decision as a substitute for conciliation on October 29, 2013 (hereinafter “instant decision”) became final and conclusive as follows, by participating in each conciliation by Plaintiffs KimB, LeeBA, and ○○○○.

1. The instant rearrangement project owner shall pay KRW 1,94,923,059 out of the amount of the instant real estate sales, business compensation, directors' expenses, religious facilities, and compensation for the suspension of religious activities of the ○○○○○○○○○○○○, etc., KRW 1,144,126,239, and KRW 846,879,259, and KRW 500,698,913 to the Plaintiff Kim○○, respectively, and KRW 97,461,529 out of the amount to be paid to the Plaintiff Kim○, KRW 572,063,119, and KRW 549,456, out of the amount to be paid to the Plaintiff○○○○○○, and KRW 572,439,629,629, out of the amount to be paid to the Plaintiff ○○○, the remainder of the amount to be paid to the Plaintiff ○○○ shall be paid up to the 131.

2. The Plaintiffs and ○○○○ shall keep all documents regarding the transfer of the instant real estate in a certified judicial scrivener office designated by the instant rearrangement business entity, immediately after the completion of the instant conciliation.

3. The Plaintiffs and ○○○ companies deliver the instant real estate by November 30, 2013.

(4), (5) omitted.

6. After receiving the money under paragraph (1), the Plaintiffs and ○○○○ shall immediately implement the procedure for the registration of ownership transfer of the instant real estate to the instant rearrangement project owner.

7. The plaintiffs and ○○○ companies shall not claim all expenses related to compensation to the rearrangement project entity in addition to the amount under paragraph (1).

(8), (9) omitted.

E. On February 28, 2014, the Plaintiffs deducted the amount equivalent to the ratio of the instant business compensation, etc. based on the above appraised value from KRW 3,95,459,459,057, excluding KRW 30,469,50, and KRW 30,459,057, which are state-owned and public land, from the compensation (referring to compensation excluding compensation paid by ○○○○, out of compensation prescribed in the instant decision; hereinafter referred to as “compensation for this case”). The Plaintiffs calculated the transfer value of the instant real estate (Plaintiff Kim 1,929,250,49, KRW 138,759, KRW 493, KRW 842,79, KRW 8479, KRW 79, KRW 939, KRW 306, KRW 707, KRW 2707, KRW 12547, KRW 1384,279, KRW 485,27547).

F. On March 6, 2017, the instant compensation includes compensation for losses caused by the instant trees, etc. in the course of the relocation (hereinafter “the instant compensation for losses”). However, at the time of the first declaration, the Plaintiffs did not deduct the amount of depreciation compensation calculated by deducting the amount of depreciation compensation calculated by the Plaintiffs against the Defendant at the time of the first declaration, and filed an application for correction seeking refund of KRW 95,715,880 (Plaintiff KimB 12,792,80, Plaintiff Kim Young-B 70,278,290, Plaintiff Lee Young-AA 12,64,710, which corresponds to the difference between the amount of depreciation compensation calculated by deducting the amount of depreciation compensation calculated by the Plaintiffs and the amount of taxes reported and paid by the Plaintiffs.

G. On April 24, 2017, the Defendant rendered a disposition rejecting the Plaintiffs’ request for correction on the ground that only the documents submitted by the Defendant on April 24, 2017 were insufficient grounds to recognize that the compensation amount for losses incurred prior to trees was included in the compensation amount (hereinafter “instant disposition”). The Plaintiffs filed a request with the Tax Tribunal on July 18, 2017, but was dismissed on October 16, 2017.

[Ground of recognition] Facts without dispute, Gap's 1 through 3, 9, 10 evidence, Eul's 1 through 4, 6, 8 evidence, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiffs' assertion

The amount equivalent to the instant depreciation compensation includes the amount equivalent to the instant depreciation compensation, which does not constitute capital gains subject to capital gains tax, and the Plaintiffs reported and paid capital gains tax by using the amount not deducted due to mistake as the transfer value. Therefore, the Defendant should make a decision to revise capital gains tax amount calculated based on the transfer value calculated by deducting the amount equivalent to the instant depreciation compensation. However, the instant disposition rejecting the determination is unlawful.

B. Determination

(1) Article 94 of the former Income Tax Act (amended by Act No. 12852, Dec. 23, 2014) limits capital gains subject to capital gains tax to the income accruing from the transfer of land or buildings, income accruing from the transfer of rights to real estate, income accruing from the transfer of rights to real estate, and income accruing from the transfer of certain assets or rights, such as income accruing from

If the instant compensation includes money other than the income accrued from the transfer of the instant real estate, it is clear that it should be deducted from the transfer value. It is determined that the instant compensation claimed by the Plaintiff does not constitute the income accrued from the transfer of the instant real estate, as compensation for withering to death or damage to property generated in the process of transferring the instant trees, etc. by nature.

In the case of trees, the Defendant asserted to the effect that the price of trees is included in the transfer income of the land, as the goods fixed on the land, which were acquired through consultation or expropriated with the land. However, in the appraisal as seen earlier, some trees are evaluated as the object of acquisition, but the majority of trees assessed only the transfer cost, considering the object of transfer, and the decision of this case was made based on these classifications. Thus, there is no evidence to deem that the rearrangement project owner of this case, in the process of the decision of this case, acquired all trees together with the land. The Defendant’

Therefore, we examine whether the depreciation compensation of this case is included in the compensation of this case.

According to Article 55(1) of the Enforcement Rule of the Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor, with respect to movable property to be transferred according to the acquisition or use of land, etc., the amount equivalent to the depreciations arising from the previous transfer should be compensated for not only the expenses incurred in the transfer, but also the amount equivalent to the depreciations arising therefrom. The plaintiff KimA also submitted a written response to the purport that the plaintiff KimA has collected and managed the trees, etc. in the extradition lawsuit of this case for more than 40 years, which is anticipated to cause serious damage and damage as a result of the transfer, and therefore, the rearrangement project entity of this case also attached

In addition, as seen earlier, the appraisal price of the instant real estate is approximately KRW 2.6 billion. The difference between KRW 3.98 billion in total, and KRW 1.3880 million in total, and KRW 1.880 million in total, if ○○○ included the shares received, the difference between KRW 1.88 billion in total. However, the appraisal price of the instant real estate is about KRW 40 million in total, and the remainder of KRW 1.344 billion in total and KRW 1.84 billion in total among the above difference, as the Defendant asserted, the rearrangement project entity of the instant case appears to be somewhat larger in terms of the additional amount paid in return for the instant real estate in order to smoothly carry out the project.

Article 22(1) of the Civil Act provides that “The compensation amount of the compensation amount of the compensation amount of the compensation amount of the compensation amount of the compensation amount of the compensation amount of the compensation amount of the said case shall be included in the compensation amount of the compensation amount of the said case, and the compensation amount of the compensation amount of the said case shall be included in the compensation amount of the said compensation amount of the compensation amount of the said case.”

㈎ 원고들은 스스로 산정한 이 사건 수목 등의 가치 추산액 804,510,000원에 파손비율 50%를 적용하여 이 사건 감손보상금액을 402,255,000원이라고 주장하는바, 이 사건 수목 등의 가치 추산액이 그 주장과 같다고 인정할 객관적인 자료가 없고(이 사건 인도소송에서 원고 김AA이 주장했던 가액과도 다르다), 파손비율 50% 역시 합당한 근거를 가진 수치가 아니다. 원고들 스스로 이 사건 수목 등의 가치 및 파손비율을 다소 임의적으로 계산하였다고 자인하고 있다(2018. 12. 26.자 준비서면). 그리고 이 사건 인도소송을 전후하여 이 사건 수목 등에 대해서는 그 이전비만 감정이 이루어졌지 그 가액이나 이전에 따른 감손상당액에 대한 감정은 이루어지지 아니하였고, 현재 이 사건 수목 등의 가액이나 감손상당액에 대한 소급감정이 가능한지도 의문이며, 달리 이 사건 감손보상금액을 확정할 수 있는 자료가 없다.

㈏ 원고 김AA이 이 사건 인도소송의 답변서에 첨부한 자료에는 수목 등의 수량이 589개, 그 가액이 약 233,730,000원으로 기재되어 있다. 공익사업을 위한 토지 등의 취득 및 보상에 관한 법률 시행규칙 제37조에서 관상수나 수익수의 고손율을 최대 20%로 정하고 있는 점, 분재나 수석 등 나머지 동산은 일반적으로 수목보다 이전이 용이한 점 등에 비추어 볼 때, 이 사건 결정과정에서 고려될 수 있었던 감손보상금액은 이 사건 보상금 전체에서 차지하는 비중이 미미하다.

이 점에서 원고들은 이 사건 결정 과정에서 이 사건 감손보상금을 이 소송에서 주장하는 만큼 중요한 요소로 고려하지 아니하였음을 추단할 수 있다. 원고 김AA이이 사건 인도소송에서 제출한 답변서의 내용도 전체적으로는 ○○사의 종교시설로서의 특수성을 역설(力說)하면서 이 사건 정비사업구역 내에 있던 다른 종교시설의 사례에 비추어 ○○사의 보상금이 적어도 37억 원 내지 40억 원은 되어야 한다는 취지이고, 수목 등의 보상에 대해서는 부수적으로 주장하고 있을 뿐이다.

㈐ 이 사건 결정에는 보상금의 명목이 '이 사건 부동산의 매매대금, 영업보상금, 이사비, 종교시설 ○○사의 종교활동 중단 등으로 인한 보상금'이라고 명시되어 있다.

This reflects the plaintiffs' opinions in the mediation plan prepared by the rearrangement project entity of this case. In other words, the plaintiffs classified the amount of compensation payment into the plaintiffs and the ○○○○○, and added "compensation for losses caused by the suspension of religious activities" to the same name, and reflected this opinion. On the other hand, the plaintiffs did not mention the amount of compensation for depreciation in this case and did not claim compensation except as otherwise provided in this decision. Thus, it is reasonable to view that compensation other than the above mentioned name is waived.

3. Conclusion

Thus, the plaintiffs' claims are dismissed as it is without merit.