Chuncheon District Court-2015-Gu Partnership-448 ( December 18, 2015)

Early High Court Decision 2014J 4515 (O5, 2015)

Expenses for real estate consulting without evidence shall not be recognized as necessary expenses for capital gains.

Although there is a certificate, receipt, etc. but there is no financial evidence, and real estate consulting expenses not reported as value-added tax are not recognized as necessary expenses for capital gains.

Article 97 (Calculation of Necessary Expenses for Transfer Income)

(Chuncheon)Revocation of revocation of disposition of imposing capital gains tax;

AA

BB Director of the Tax Office

Chuncheon District Court Decision 2015Guhap4448 Decided December 18, 2015

April 3, 2017

May 22, 2017

1. The decision of the court of first instance that rejected the plaintiff as follows shall be revoked:

Of the Plaintiff’s instant lawsuit, the part exceeding KRW 46,61,488 of the capital gains tax in 2009, the part exceeding KRW 10,945,164 of the capital gains tax in 2010, and the part exceeding KRW 45,596,262 of the capital gains tax in 2012 shall be dismissed, respectively.

2. The plaintiff's remaining appeal is dismissed.

3. 19/20 out of the total costs of the lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant.

The judgment of the first instance shall be revoked. The defendant shall revoke the disposition of imposition of capital gains tax of KRW 105,815,970 ( KRW 47,649,030 in 2009, KRW 11,195,970 in 2010, KRW 5,225,840 in 2012, and KRW 41,745,130 in 209) against the plaintiff on April 1, 2014.

1. Details of the disposition;

The court's explanation on this part is identical to the corresponding part of the reasoning of the judgment of the court of first instance except for the following modifications. Thus, this part is cited in accordance with Article 8 (2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

▣ 수정하는 부분

1. (a) revise "CCC, which is a real estate intermediary" in paragraph (1) of the reasoning of the judgment of the first instance to "CC."

2. Determination as to the existence of a lawsuit’s interest

On April 14, 2017, the Defendant revoked ex officio part of the instant disposition, which was pending in the instant lawsuit, and the specific amount of revoked tax is as follows:

Therefore, the plaintiff does not have any interest to seek revocation with respect to the portion exceeding the remaining tax amount (e.g., revocation portion). Thus, the plaintiff's lawsuit against it should be dismissed as unlawful.

3. Whether the instant disposition is lawful

The court's explanation on this part is consistent with the reasoning of the judgment of the court of first instance, except for the following modifications, as stated in the part on "the legitimacy of the disposition of this case". Thus, this part is cited in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

▣ 수정하는 부분

2.(c)(2) of the reasoning of the judgment of the first instance court, the portion from the fifth to the fourteenth shall be amended from the fifth to the 14th as follows in the judgment on the assertion that real estate consulting cost 143,500,000 won occurs.

With respect to this case based on “A”, the Plaintiff paid the CCC the real estate consulting cost, and submitted Gap evidence Nos. 6 and 7 (including any number in the case of each number). However, in light of the following circumstances acknowledged by comprehensively taking into account the descriptions of Gap evidence No. 8, witness DD’s testimony and the overall purport of oral argument in the trial, the evidence submitted by the Plaintiff alone (only is deemed to have participated to a certain extent in the process of resale of the land of this case) is unclear whether CCC was in any position in relation to the resale of the land of this case (whether it is a Dong business operator or a consulting provider or a simple intermediary) and accordingly, whether the amount paid by the Plaintiff to CCC can be deemed necessary expenses, and whether the amount actually paid to CCC is not clear. Accordingly, the Plaintiff’s assertion on this part is without merit.

1) First of all, objective financial data to deem that the Plaintiff paid the claimed amount to CCC was not submitted.

2) Furthermore, the evidence Nos. 6 and 7 (including the number in case of each number) appears to have been submitted at the time of the filing of the objection because they were not submitted at the time of the tax investigation. If the Plaintiff paid the amount claimed as consulting expenses, it is difficult to understand that the Plaintiff did not submit an agreement, receipt, etc. at the time of the tax investigation, even though it was not submitted in the

3) Furthermore, the Plaintiff stated that “30% of the profit” was paid to CCC at the time of the tax investigation, but submitted evidence Nos. 6 and 7 at the time of filing an objection, and reversed the statement that “30% of the purchase price” was paid. When considering the difference in the amount, it is difficult to easily understand the reasons for the return of the statement.

4) In addition, as seen earlier, the Plaintiff and CCC asserted that it is difficult to accept with respect to the purchase price (realistic compensation) of the instant land, and thus, it is difficult to believe the Plaintiff and CCC’s statement on this part as it is.

5) In fact, CCC appears not to reflect the above consulting cost in sales when reporting value-added tax on EE real estate consulting it operates.

4. Conclusion

Therefore, the part of the lawsuit of this case exceeding KRW 46,61,48 of the transfer income tax in 2009, the part exceeding KRW 10,945,164 of the transfer income tax in 2010, and the part exceeding KRW 45,596,262 of the transfer income tax in 2012 shall be dismissed, respectively, and the remainder of the lawsuit of this case shall be dismissed as it is unlawful, and the remainder of the lawsuit of this case shall be dismissed as it is without merit. Since the part of the judgment of the court of first instance that different conclusions is unfair, the plaintiff's lawsuit corresponding to the revoked part shall be dismissed, and the remaining appeal of the plaintiff shall