Whether the loan interest paid for the investment in a joint business place is recognized as necessary expenses

The interest paid on borrowings for investing in a joint business place shall not be included in the necessary expenses of the joint business place in calculating the income amount.

Article 27 (Calculation of Necessary Expenses)

1. Details of the disposition;

The following facts are not disputed between the parties, or acknowledged by considering the whole purport of the pleadings in each entry of Gap evidence 1, Gap evidence 3-1, 2, 4-1, 4-1, and Eul evidence 1-1.

(2) Each of the above land is a lot number of 1, 6, 3, 456.48 square meters on the instant land. The Plaintiff was jointly owned by ○○○ (hereinafter referred to as “the instant real estate”) (hereinafter referred to as “the Plaintiff”) with a loan of 10 billion won and 20 billion won (hereinafter referred to as “100,000,000,000,0000,000,000,000,000,000,0000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,000,00,00,00.).

A. The plaintiff's assertion

(1) Of KRW 500,000, KRW 300,000 of the instant loans were jointly used by the Plaintiff, etc. to repay KRW 300,000,000,000, which was loaned to ○○○ in the name of Kim○○, as collateral. The remainder of KRW 200,000,000 and KRW 100,000,000,000, which was put by the Plaintiff upon acquiring Kim○’s shares, used to repay KRW 276,00,000,00

(2) At the time of purchase of ○-○ land on March 4, 2002, the Plaintiff, etc. lent KRW 393,376,600 to △△△△△, and KRW 18,950,00 from △△△△△. ② The Plaintiff, etc. paid KRW 395,014,771 (including interest on loans) to △△△△△△△△△ on the 20th of the same month, and KRW 10,306,450,000, respectively, and paid KRW 10,306,450,000,000 to ○○ Construction Co.,, Ltd. on the 29th of the same month, while awarding a contract for the construction of the instant building to ○○ Construction Co., Ltd., the remainder KRW 75,720,000,000,000.

(3) The instant loans (3) were used to repay KRW 100 million of the deposit previously paid by Lee ○○ and Kim○○ on February 21, 2000.

(4) A loan and (300 million won out of the loan are borrowed in the name of the plaintiff, but the actual debtor is not the plaintiff but the Dong company composed of the plaintiff, etc. among the above (i) loans and (iv) loans are disbursed by the plaintiff when the plaintiff takes over the shares of the business from the former Kim○○ who is the partner, but the above loans are also borrowed by the plaintiff, etc. with the intent to settle the amount of the investment in the future, and the above (iv) the above loans are also borrowed with the obligation of the Dong company. Accordingly, the interest is also automatically transferred from the passbook of the Dong company as shown above (i), (ii) and (iii) the interest on the loan, and thus, the actual debt is attributed to the Dong company.

(5) Therefore, each of the instant loans is a debt used by the Plaintiff, etc. to obtain rental income in operating a real estate rental business as a joint business operator. Therefore, the key interest in the instant loan should be included in the necessary expenses of the real estate rental income.

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

In addition to the above evidence 1, 2, and 7-1, 2, 1, 3, 6, 9-1, 2, and 2-1 of the evidence of Nos. 5-1, 2, 7-1, 3, 6, 9-1, 2, and 2-1, the following facts are recognized:

(1) On September 30, 1999, Kim ○ and Lee ○○ shall purchase ○○ land from Do○○○ to complete the registration of ownership transfer by 1/2 of the shares of 91,9260,000 won (value in the verification contract) and complete the registration of ownership transfer by Do○○○, and at this point, jointly operate real estate rental business.

(2) On September 5, 2001, the Plaintiff entered into a contract to purchase 50% of the shares in the partnership business of the above real estate leasing business in the amount of KRW 476 million. On October 15, 2001, the Plaintiff entered into a joint contract to invest business funds in the ratio of 50% between E-○ and E-○○ on October 15, 2001, and to operate the joint business. The Plaintiff shall distribute the profits of 50% out of the profits each year from October 15, 2001, which is the starting date of the joint business to the termination of the contract, to E-○○. The Plaintiff et al. agreed to jointly hold a liability for the loss incurred by the lease business.

"(3) 원고 등은 2001. 10. 18.경 공동사업자명의를 김○○에서 원고로 변경하는 한편(사업자등록번호 : ○○○-○○-○○○○○, 2002. 3. 5.경 ○○ 토지를 ○○○○공단으로부터 393,376,600원에 매수하여 2분의 1지분씩 소유권이전등기를 마친 후, 같은 달 29. 이 사건 토지 위에 이 사건 건물을 신축하는 공사를 ○○건설 주식회사에 16억 5,000만 원에 도급 주었으며, 2002. 12. 9. 이 사건 건물에 대해 각 2분의 1지분으로 소유권보존등기를 마쳤다. 한편, 원고 등은 앞서 본 사업자등록과는 별도로 2002. 6. 27. ○○○세무서장에게 상호는 ○○빌딩' , 사업장소재지는 이 사건 부동산 소재지, 사업의 종류는 부동산임대업, 개업일은 2002. 7. 1.로 하는 사업자등록(등록번호 : △△△-△△-△△△△△)을 하였다.",(4) 한편, 김⏣⏣은 2000. 2. 21.경 김○○와 사이에 ○○ 토지 중 일부인 102.5㎡와 이 사건 건물 신축 이전에 존재하던 건물에 관하여 전세보증금 1억 원으로 한 전세계약을 체결하고 같은 해 3. 7. 전세권설정등기를 마쳤다.

D. Determination

(1) Article 87(3) of the Income Tax Act provides that a joint business place with real estate rental income shall be deemed as one businessman and the amount of income shall be calculated. Thus, the interest paid on the money borrowed by a joint business place to invest in a joint business place shall be deemed as expenses unrelated to the business of the joint business place, and in calculating the amount of income, the interest paid shall not be included

(2) As to the instant loans ①, ③, and ④

(가) 원고가 김○○로부터 동업지분을 인수할 당시 김○○의 지분이 50%이고, 당시 동업재산 중 일부였던 ○○ 토지의 취득 당시 검인계약서상 매매가격만도 9억 1,926만 원이어서 그 금액을 기준으로 지분금액을 계산하더라도 약 4억 6,000만원에 이르는 점, 이 사건 건물을 신축하기 이전의 기존 건물 또한 공동사업용임에도 원고의 지분인수대금은 4억 7,600만 원에 불과한 점, 원고가 동업체에 참여하기 위해서는 김○○의 지분을 인수하여야 하고, 그 지분인수 대가로 지급한 돈은 동업체가 지급하는 것이 아니라 원고 개인이 출연하여야 할 출자금에 해당한다고 보아야 할 것인 점 등을 고려하면, 원고가 자신을 채무자로 하여 대출받은 돈으로 갚은 김○○ 명의의 근저당채무 및 김⏣⏣에 대한 전세금 반환채무는 모두 원고의 출자금 출연의 이행에 해당한다고 봄이 상당한다.

(B) Therefore, the amount equivalent to the interest of the instant loans ①, ③, and ④ all of the loans are personal obligations for the performance of the Plaintiff’s investment obligation, and cannot be appropriated as necessary expenses of the joint venture business. Therefore, the aforementioned part of the loans are

(2) As to the loans in this case

(A) Even if the plaintiff's assertion that the above loans were paid as the purchase fund for the ○-○ land is believed, the plaintiff is obligated to purchase the land of this case and secure the ownership of shares and contribute 50% of the expenses incurred in the construction of the building of this case. It is reasonable to view that the amount equivalent to 50% of the purchase price for the land of this case and the contract price for the building of this case exceeds one billion won, and that the plaintiff's payment of the above loans as the purchase price for the land of this case constitutes the fulfillment of the investment obligation for securing the right to share in the land or building. It is also deemed that the plaintiff's payment for the land of this case exceeds one billion won.

(B) Therefore, there is no reason to claim this.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so decided as per Disposition.