National Tax Service Review and Transfer 2011-0208 ( November 11, 2011)

Since land-related permission costs and civil construction costs are deemed to have been paid, it should be recognized as necessary expenses.

Since permission costs related to land and civil construction costs are deemed to have been paid, it should be recognized as necessary expenses, and penalty taxes should be imposed, without specifically calculating the underreported amount in an unjust manner, the penalty tax rate for unlawful underreporting was applied to the total principal tax and the specific method of calculation was not notified. Therefore, the penalty tax portion for incomplete reporting is illegal.

2012Gudan4565 Revocation of Disposition of Imposing capital gains tax

Section AA

Head of Eastern Tax Office

November 21, 2012

January 16, 2013

1. The Defendant’s disposition of capital gains tax (including additional tax) for the year 2009 against the Plaintiff on January 4, 201, in excess of KRW 000 ( KRW 000 per capital gains tax + KRW 000 per capital gains tax + penalty tax for unfaithful payment) is revoked.

2. The plaintiff's remaining claims are dismissed.

3. One-half of the costs of lawsuit shall be borne by the plaintiff, and the remainder by the defendant.

The Defendant’s disposition of imposing capital gains tax of KRW 000 (including additional tax) for the year 2009 against the Plaintiff on January 4, 2011 shall be revoked.

1. Details of the disposition;

A. On December 10, 2009, the Plaintiff transferred the land and its ground (hereinafter collectively referred to as the “instant real estate”) on the land and its ground (hereinafter referred to as “the instant real estate”), and reported the transfer income tax for 2009, with the transfer value of KRW 000, and KRW 00,000.

B. However, on January 4, 2011, the Defendant issued a correction and notification of capital gains tax of 000 won (the principal capital gains tax of 000 won + additional tax of 000 won + additional tax of 000 won + additional tax of 000 won for failure to report, and hereinafter “the initial disposition in this case”) by denying the purchase price of the Plaintiff, and the civil construction cost of 000 won, and the acquisition price of the building, as the conversion price of the building.

C. After that, the original disposition of this case was 000 won ( = the principal income tax of 000 won + the additional tax of 000 won + the additional tax of 000 won for unfaithful filing of a return + the additional tax of 000 won for insincere filing of a return) (hereinafter “the disposition of this case”).

[Ground of Recognition] The non-satched facts, Gap evidence 1, 2, and Eul evidence 1, 6, and 7, and the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The plaintiff asserts that the disposition in this case is unlawful for the following reasons. In other words, in relation to the real estate in this case, the plaintiff has additionally spent KRW 000 in addition to the permission for land, and ② has spent KRW 000 in the civil construction cost, ③ has paid KRW 00 in the real estate consulting cost, and ④ has paid KRW 00 in the construction cost to EE items (ju), and each of the above costs has to be deducted as necessary expenses.

(b) Fact of recognition;

(1) On September 12, 1996, the Plaintiff agreed to purchase the instant real estate from FFS Co., Ltd. (hereinafter referred to as FFS) to bear the Plaintiff’s service costs and various costs incurred in relation to the instant permission, and paid 000 won to FFS in fact to FFS.

(2) The Plaintiff paid KRW 000 to the O mid-term with the civil construction cost related to the instant real estate.

(3) Meanwhile, while the Plaintiff filed an unfair return on the tax base, the Defendant imposed additional tax of KRW 000 on the Plaintiff. In calculating the said additional tax, the Defendant calculated the total amount of capital gains tax of KRW 000 by applying the additional tax rate of KRW 40 per cent, and did not notify the Plaintiff of the specific calculation method.

[Ground of Recognition] The above evidence, Gap evidence Nos. 3 through 7, and evidence Nos. 9, and the whole purport of the pleading

C. Determination

(1) Land-related permitted costs of KRW 000

According to the above facts, the plaintiff spent 000 won as land purchase cost, and it should be deducted as acquisition price or necessary expenses of the real estate of this case, and this part of the plaintiff's assertion is with merit.

(2) Part of the civil construction cost

According to the above facts, the plaintiff spent 000 won to the OJ as civil construction cost, and the above amount should be deducted from the necessary expenses. Furthermore, with respect to the exceeding amount, the evidence submitted by the plaintiff alone is insufficient to recognize it, and there is no other evidence to recognize it. Therefore, this part of the plaintiff's assertion is reasonable within the above recognized scope, and the remainder is without merit.

(3) Part of the real estate consulting cost

The evidence submitted by the plaintiff alone lacks to recognize the above real estate consulting cost as necessary expenses, and there is no other evidence to recognize it, and this part of the plaintiff's assertion is without merit.

(4) Part EE (State) Construction Costs of 000 won

The evidence submitted by the plaintiff alone is insufficient to recognize that the plaintiff paid the above amount as construction cost, and there is no other evidence to acknowledge it, and this part of the plaintiff's assertion is without merit.

(5) Additional tax for unfaithful report

According to Article 47-3(2)1 of the Framework Act on National Taxes, and Article 47-3(2)1 of the same Act provides that the amount of penalty tax for the tax base under-reported by a taxpayer is imposed as penalty tax, and the amount equivalent to 40/100 of the amount calculated by multiplying the calculated tax by the ratio of the amount equivalent to the tax base under-reported by the Plaintiff to the tax base under-reported by improper means among the tax bases is imposed as penalty tax. In this case, while imposing penalty tax on the Plaintiff, the Defendant did not specify the ratio of the amount equivalent to the tax base under-reported by the Plaintiff to the tax base in an unjust manner, and did not notify the entire principal tax of the capital gains tax by multiplying the amount under-reported by 40/10, and it was unlawful

(6) Justifiable tax amount

The legitimate amount of tax is KRW 000 and KRW 000 of the additional tax for insincere payment, as shown in the attached Form.

D. Sub-committee

Therefore, the part of the disposition in this case exceeding KRW 000 (principal capital gains tax + KRW 000 + penalty tax of KRW 000 for unfaithful payment) is unlawful (the part of penalty tax for unfaithful payment is to be revoked in order for the Plaintiff to determine the tax base under-reported in an improper manner and to re-calculated it), and the part of the money is lawful.

3. Conclusion

If so, the plaintiff's claim of this case is accepted within the above scope of recognition, and the other claim is dismissed as it is without merit, and it is so decided as per Disposition.