National Tax Service Review and Transfer 2011-0027 ( October 27, 2011)

It is not recognized that service costs have been paid to the real estate consulting company.

A real estate consulting company fails to submit objective financial data on the assertion that the service cost disbursed by the real estate consulting company should be recognized as necessary expenses or on the payment of service cost, and the consulting company is treated as cash recovery when it appropriated the amount equivalent to the service cost as sales bond, but fails to pay value-added tax, etc., it cannot be deemed necessary expenses

2011Gudan20980 Revocation of Disposition of Imposing capital gains tax

XX

Samsung Head of Samsung Tax Office

October 24, 2012

December 5, 2012

1. The plaintiff's claim is dismissed.

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

Each disposition of KRW 000 of the transfer income tax belonging to the year 2009, October 1, 2010 that the Defendant rendered to the Plaintiff and KRW 000 of the transfer income tax belonging to the year 2009, shall be revoked.

1. Details of disposition;

A. The plaintiff, on October 29, 2008, purchased the land and detached housing (hereinafter referred to as "land of this case") from 200-329, and transferred the land of this case to A and B (hereinafter referred to as "the real estate of this case") on June 16, 2009, and on August 31, 2009, the transfer value was KRW 00,000, and the transfer value was KRW 00,000, and the transfer loss was 00,000,000, which was 10.0,000,000,000,000,000,000 won, which was included as necessary expenses.

D. On August 22, 2011, the Plaintiff filed a lawsuit against the Defendant seeking the revocation of each of the instant dispositions.

[Ground of recognition] Facts without dispute, Gap Ll through 3, 11, Eul evidence 1 and 6, the purport of the whole pleadings

2. Whether the disposition is lawful;

A. Summary of the plaintiff's assertion

"The plaintiff acquired the real estate of this case as a plan to construct a new loan on the land of this case. The plaintiff concluded a consulting service contract with the non-party company (representative HongCC) on November 1, 2008 with regard to the sale and purchase of the land of this case and paid 000 won as down payment. Thus, the plaintiff introduced the buyer of this case from the non-party company, and entered into a sales contract on April 27, 2009 with the purchaser of this case, and then the plaintiff and the non-party company drafted again a real estate consulting service contract with 000 won for the service price of this case while destroying the above provisional contract. On June 16, 2009, the plaintiff received 00 won from the purchaser of this case, and paid 00 won for the service price of this case to the non-party company, and thus, the plaintiff actually paid 00 won for the service price of this case to the non-party company as the necessary expenses related to the non-party company of this case."

C. Determination

The burden of proving the legality of taxation is against the tax authority, so in principle, the tax authority bears the burden of proving necessary expenses that are the basis of the determination of taxable income. However, deduction of necessary expenses is more favorable to the taxpayer, but most of the facts that are the basis of necessary expenses are located in the controlled area of the taxpayer, so the tax authority is difficult to prove. Thus, where it is reasonable to have the taxpayer prove the burden of proof in consideration of difficulty in proof or equity between the parties concerned, the need of proof should be returned to the taxpayer (see, e.g., Supreme Court Decision 91Nu109, Jul. 28, 1992).

The non-party company entered the amount equivalent to the service cost of this case into the sales bond, and thereafter entered into an account as a result of cash recovery, and filed a value-added tax return on the credit, but does not pay value-added tax (including the evidence of subparagraphs 3 through 5 (including each number), the purport of the whole pleadings). The plaintiff asserted that the service cost of this case was paid as a check, but did not submit specific and objective financial data, etc. to support this, so long as the plaintiff did not submit specific and objective financial data, it is insufficient to recognize the above assertion only by the statement of the evidence of subparagraphs 8 and 12 (including each number).

Therefore, each of the dispositions of this case, which the Defendant did not recognize the service cost of this case as necessary expenses, is justifiable.

3. Conclusion

Therefore, the plaintiff's claim is dismissed for lack of reason.