Supreme Court Decision 2012Du942 ( October 15, 2013)

Cho High Court Decision 2010Du0752 (2010.05.04)

It is difficult to deny the fact that the sales agency contract is concluded and the sales agency fee is paid.

In light of the fact that a land sale agency contract is prepared and only the amount calculated by the price stated in the contract out of the sale price is paid to the plaintiff, it is difficult to deny the fact that a land sale contract is concluded or the fact that the sale agency has paid the sale agency fee, and thus, it is illegal to dispose

Article 97 (Calculation of Necessary Expenses for Capital Gains)

2013Nu802 Revocation of Disposition of Imposing capital gains tax

AA

Director of the District Office

Seoul Administrative Court Decision 2010Gudan16199 decided February 9, 2011

Seoul High Court Decision 2011Nu8750 Decided December 9, 2011

Supreme Court Decision 2012Du942 Decided February 15, 2013

July 3, 2013

August 21, 2013

1. Revocation of a judgment of the first instance;

2. The Defendant’s imposition of the capital gains tax of December 1, 2009 and the imposition of the capital gains tax of December 4, 2010 and the imposition of the capital gains tax of January 2009 shall be revoked.

3. All costs of the lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. Details of the disposition;

A. On October 17, 2008, the Plaintiff acquired an amount of KRW 916 square meters (915.36 square meters per second time; hereinafter referred to as “instant land”) from among 00,000, 200, 200,0000,000 won and 39,000,000,000,000,000,000 won for 20,000,000 won for 20,000,000 won for 30,000,000 won for 20,000,000 won for 20,000,000 won for 30,000,000 won for 20,000 won for 20,000,000 won for 30,000,000 won for 20,000 won for 20,000,000 won for 20,000.

Grounds: Facts without dispute, Gap evidence 3, 5, and 7, and Eul evidence 1 through 4 (including household numbers, hereinafter the same shall apply), and the whole purport of the pleading

2. Whether each of the dispositions of this case is legitimate

A. The plaintiff's assertion

“In order to sell the instant land, the Plaintiff entered into a land sales agency contract (hereinafter “instant land sales agency contract”) with a company that provides real estate consulting services and a non-party company that provides real estate consulting services to pay an amount exceeding the KRW OOOO per square meter as a sales agency fee. Accordingly, the non-party company transferred the instant land and paid only the amount calculated as an OOOO won per square meter out of the total transfer price to the Plaintiff, and the remainder is paid as a sales agency commission.” Therefore, the amount reported by the Plaintiff as a sales commission must be deducted as necessary expenses. Accordingly, each of the instant dispositions that the Plaintiff reported otherwise violates the principle of substantial taxation and are unlawful

(b) Fact of recognition;

1) Around April 3, 2008, the non-party company was established for the purpose of real estate sales and sales agency business, etc., and closed around September 30, 2009, and the plaintiff became the representative director of the non-party company on August 1, 2008.

2) On October 20, 2008, the land sales service contract (Evidence A No. 4) signed between the Plaintiff and the non-party company on behalf of the non-party company for the sale of the instant land, the non-party company as a sales agency fee for the sale of the land, and the amount exceeding the office rent according to the sales agency, the employee's benefits, the communication expenses, and the cost of partition and other expenses are all borne, and the non-party company shall deposit the land sales price with the account of the non-party company with the amount excluding the sales agency fees.

3) The Plaintiff’s claim that the purchase price of the instant land was calculated as the OOO members per square day and was received from the Nonparty Company was transferred from the Nonparty Company’s account to the Plaintiff’s relay, five times from December 2, 2008 to April 1, 2009.

4) According to the details of withholding tax from individual business income of the non-party company submitted by the Plaintiff, the non-party company paid sales allowances to the Plaintiff, the owner of the instant land, several times.

Grounds for Recognition: the facts without dispute, Gap 4, 5, 13, 14, 19 through 21, 24, 26, 28, 40, and Eul 13, and the purport of the whole pleadings

C. Determination

1) Whether sales agency fees are paid

First, we examine whether the Plaintiff paid the sales agency fee. In full view of the following circumstances revealed by the facts recognized earlier and evidence, we can find the fact that the Plaintiff paid the total of sales agency fee in accordance with the instant land sales service contract concluded between the Plaintiff and the Nonparty Company.

① In addition, the Plaintiff and the Nonparty Company prepared a sales agency service agreement on the instant land, and the Nonparty Company received the purchase price from the purchaser who purchased the instant land in the account of the Nonparty Company in accordance with the contract and paid the Plaintiff the sales allowance to the sales salesperson or the executives including the Plaintiff, calculated as KRW OO in the average among them. In addition, the fact that the Nonparty Company sold the instant land and paid sales allowance to the sales salesperson or the executives including the Plaintiff, which included the sales performance, is confirmed by the details of passbook or the details of withholding, and also accords with the details of the tax return.

② On July 31, 2008, the non-party company entered into a land purchase agency contract with the EE (EE is the person who sells the instant land to the Plaintiff) and the OO Eup 52-1 land, etc. including the instant land under almost the same conditions as the Plaintiff, but only set the sales agency fee as the part exceeding the OO0 won at ordinary. Furthermore, the non-party company entered into a land purchase agency contract with the seller of the instant land other than the instant land under the conditions similar to the instant land purchase agency contract.

③ According to the above evidence, the non-party company entered into a land sales service contract with EE, but the problems occurred during the implementation process, and accordingly, the Plaintiff purchased the instant land from EE, and the non-party company again entered into a land sales service contract with the Plaintiff. In light of the circumstances leading up to the purchase of the instant land, it cannot be readily concluded that it is improper to vest the non-party company in the substantial profit from the transfer of the instant land.

④ Rather, it is inappropriate for the Plaintiff, who is the representative director of the non-party company, to gain personal benefits by using such opportunity, and there are circumstances in which the Plaintiff can obtain sales allowances as the representative director separately. Therefore, there is sufficient reason to conclude a land sales service contract in this case with the price higher than the price stipulated in the land sales service contract between EE and the non-party company.

2) Whether the wrongful calculation denial is applied

In this regard, the defendant asserts that the payment of excessive sales agency fees to the non-party company in which the plaintiff had a special relationship is subject to the denial of wrongful calculation under Article 101 (1) of the former Income Tax Act (amended by Act No. 9897 of Dec. 31, 2009), and that the part exceeding the market price among sales agency fees should not be deducted as necessary expenses.

"The wrongful calculation denial provision prescribed in the related laws and regulations is interpreted to the purport of realizing fair taxation by supplementing the substance over form principle through taxation by deeming that the taxing person had income objectively reasonable and reasonable, and the wrongful calculation is recognized as "the act unreasonably reducing the tax burden because a certain transaction between a certain person with a special relationship cannot be seen as a normal transaction in light of social common sense or customs, and a reasonable economic person cannot be seen as a normal transaction," (see, e.g., Supreme Court Decision 2000Du1799, Jan. 11, 2002)." However, the above recognized facts and evidence revealed by the above facts and evidence, i.e., the non-party company entered into a land sales service contract on behalf of the owner of the land, other than the plaintiff, under a form and condition similar to that of the land sales service contract in this case, and prepared and delivered a tax invoice for the total sales commission, and reported corporate tax and corporate tax, and the size of the land in this case, including value-added tax and value-added tax, were actually sold to the non-party company.

In full view of the fact that the sales agency takes a large amount of expenses, such as wages, office rents, and telephone rates of the salespersons, so it is substantially different from the simple real estate brokerage, and that it constitutes sales agency, and the fact that the Plaintiff does not seem to have an evasion purpose of capital gains tax in light of the developments leading up to the Plaintiff’s acquisition of the instant land, etc., it is difficult to view that the Plaintiff’s payment of the total sales agency fees to the non-party company is contrary to sound social norms and transaction practices, and it is unreasonable to deem

3) Sub-decisions

Although the Defendant did not recognize the expenditure of the sales agency fee and even if the sales agency fee was paid, it is illegal to deem that the sales agency fee is subject to rejection of unfair calculation. Therefore, each disposition of this case must be revoked as unlawful.

3. Conclusion

The judgment of the first instance shall be revoked. Each disposition of this case shall be revoked.