Seocho 2012,0845 (Law No. 112, 2012)

Whether the Plaintiff actually paid the instant amount to the remodeling construction cost, which is capital expenditure

When comprehensively considering the fact that the Plaintiff paid the instant amount as a remodeling construction cost, it is difficult to deem that the Plaintiff paid the said amount as a capital expenditure, and there is no other evidence to acknowledge it otherwise.

Article 97 (Calculation of Necessary Expenses for Transfer Income)

2012Gudan20680 Revocation of Disposition of Imposing capital gains tax

Section AA

Seoul Geumcheon District Director

September 11, 2013

October 2, 2013

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

Cheong-gu Office

The Defendant’s disposition of imposition of capital gains tax OOOO on November 7, 201 is revoked.

1. Details of the disposition;

A. On December 9, 2004, the Plaintiff acquired and possessed OO-dong 1705 BB apartment 102 Dong 806 (hereinafter “the apartment of this case”) and transferred it to 0CC on January 29, 2010. Thereafter, the Plaintiff reported the transfer value as the actual transaction value to OOO, acquisition value OOOOO, necessary expenses OOOOOO, and reported the transfer value as the transfer value to OOOO, and paid the transfer margin OOOO as preliminary return and payment of the transfer margin OOOO.

B. As to this, on November 7, 2011, the Defendant denied the KRW OOO of the remodeling construction cost that was traded with DDA KimE among the necessary expenses reported by the Plaintiff, and issued a correction and notification of the capital gains tax OOO of the Plaintiff for the year 2010 (hereinafter “instant disposition”).

C. The Plaintiff appealed and filed an appeal, but was dismissed on May 31, 2012.

Facts that there is no dispute over the basis of recognition, Gap evidence 1, Eul evidence 1, the purport of the whole pleadings

2. The assertion and judgment

A. Summary of the plaintiff's assertion

The Plaintiff transferred the KRW OOO to KimE as the construction cost for the instant apartment remodeling project, and the Defendant did not recognize the payment of KRW OOO in cash after the completion of the construction work, even though the intermediate and the remainder were paid in cash. The remaining KRW OOO, excluding the beneficial expenditures, should be deducted from the necessary expenses. However, the instant disposition that did not recognize it is unlawful.

B. Determination

(1) Article 97 of the Income Tax Act and Article 163 of the Enforcement Decree of the same Act provide that necessary expenses to be deducted from the transfer value when calculating gains on transfer shall be determined, and among them, expenses to be incurred for the alteration, improvement, or convenience of the use of transferred assets may be included in necessary expenses. Since the tax authority bears the burden of proving the legality of taxation, the tax authority bears the burden of proving necessary expenses, in principle, as the necessary expenses, which are the basis of determining the legality of taxation, but the tax authority bears the burden of proving necessary expenses. However, since necessary expenses are not only favorable to the taxpayer, but most of the facts that form the basis of necessary expenses are located within the control area of the taxpayer are difficult for the tax authority to prove, the tax authority must return the necessity of proof to the taxpayer where it is reasonable to prove the taxpayer by taking into account the difficulty of proof or equity between the parties (see Supreme Court Decision 91Nu10

(2) Based on the foregoing, the issue of this case is whether the necessary expenses OOOO members asserted by the Plaintiff were paid to KimE as the remodeling construction cost, which is the capital expenditure. According to the following findings, it is difficult to view that the Plaintiff paid the said amount as the capital expenditure to KimE, and there is no other evidence to acknowledge it otherwise.

(A) The Plaintiff asserts that the contract for a construction project was concluded with Kim E-E and paid the total amount of the OE as the price. However, considering the written estimate (Evidence No. 2-1) and written contract (Evidence No. 2-2 of the A), the Plaintiff stated the trade name of 'DE' as of December 15, 2004, which is described as the date of the preparation of the said written estimate and the date of the conclusion of the contract, while the Kim E-E used the trade name of 'DE' on July 26, 2005, 'F construction' which started to be used only after July 26, 2005. ② Although the contract execution period is not about 11 days, the down payment, intermediate payment, and the remainder payment date was divided into about 10% of the total price of the construction, it is difficult to conclude that the written estimate and the written statement of value-added tax (Evidence No. 2 of this case) are not included in the written estimate or the written statement of payment of the price.

(B) The statement of the deposit sheet issued by the Defendant to the Plaintiff (A No. 2-4 through 6) is a health care unit, ① the above deposit slip was used as the trade name "DD DD DD E E E E E E E E E E E E E E E E E E E E. on the date on which the deposit sheet was written, and ② the deposit slip was prepared without being paid the down payment, intermediate payment, and remainder, and it is very exceptional to prepare the deposit slip before being paid the deposit slip, and it is difficult to believe the contents of the deposit slip.

(C) The objective data that the Plaintiff paid money to KimE is only an OO member, who was remitted to the account on December 28, 2004, and the difference between the date of the down payment under the above contract, and there is no other remittance data. On January 10, 2005, while there is no objective financial transaction data that can be seen that the above amount was paid to KimE, there is no objective financial transaction data that can be seen that the said amount was paid to the Plaintiff (not only cash but also some cashier’s checks are asserted, but also no difference exists). In addition, KimE testified that the Plaintiff paid the cash and checks received from the Plaintiff to the construction business operator immediately, but it is difficult to believe that the current status of the construction materials and checks alleged to have been administered to the instant construction business, and there is no financial data that can readily recognize that the said money was paid to other construction business operators immediately.

(3) Ultimately, the Plaintiff’s above assertion is without merit, and the Defendant’s disposition of this case cannot be deemed unlawful.

3. Conclusion

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