Cho High Court Decision 2009Du2865 (Law No. 29, 2009)

Whether the real estate brokerage commission may be deemed necessary expenses

The claim that the land was transferred in lieu of the fixed amount brokerage commission, but the actual transfer of the land is judged to have been made by paying the brokerage commission separately.

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposing global income tax of KRW 52,623,020 on the Plaintiff on January 6, 2009 shall be revoked.

1. Circumstances of the disposition;

A. As between May 6, 2004 and May 31, 2004, the Plaintiff purchased five parcels of land, other than AAArisan 256, in Chuncheon-si, from May 6, 2004, and divided and converted the registration into five parcels of land in 322-1 through 21, 322-1, and among them, transferred 19 parcels of land between May 8, 2004 to October 15, 2004, such as selling forest land in 256-13 (referred to as “instant land after registration conversion,” hereinafter) of the same Risan 256-13 (referred to as “the instant land”).

B. As a result of a tax investigation with respect to the Plaintiff, the director of the Central Regional Tax Office: (a) deemed it as business income for the Plaintiff on the ground that there was business feasibility of the Plaintiff’s transfer; (b) determined the amount of income accrued from the Plaintiff’s real estate sales business in 2004; and (c) notified the Defendant of the amount of income accruing from the instant land as taxation data; and (d) the Defendant recognized the amount of income as KRW 120,00,000 as necessary expenses and recognized it as an intermediary fee for KimB and imposed global income tax of KRW 97,051,940 on the Plaintiff in January 5, 2007.

C. In the process of processing other income tax data on KimB, the Defendant confirmed that the Plaintiff transferred the instant land to KimB without payment of brokerage commission to KRW 1 (00,000,000, and did not add the said KRW 103,540,000 to necessary expenses. On January 6, 2009, the Defendant issued the instant disposition that notified the Plaintiff of the total income tax of KRW 52,623,020 belonging to the year 204.

D. The Plaintiff appealed and filed an appeal with the Tax Tribunal on July 24, 2009 on April 3, 2009. The Tax Tribunal dismissed the Plaintiff’s claim on September 29, 2009.

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1 through 3, 8 (in the case of provisional number, 9) and Eul evidence No. 1-1, Eul evidence No. 2 and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Since KimB mediated the sale of three lots of land, including AAB, AAB, 256-1, 256-8, 256-2, etc., in lieu of the payment of brokerage commission, the Plaintiff received only 16,460,000 won out of the purchase price of the land of this case and completed the registration of ownership transfer of the land of this case to KimB. However, although the Plaintiff purchased the land of this case from the Plaintiff for KRW 110,00,000 from the purchase of the land of this case and actually paid the said full amount to the Plaintiff, the disposition of this case, which was excluded from the necessary expenses, is unlawful.

B. Determination

(1) In light of the following facts: (a) on June 3, 2004, the Plaintiff and KimB prepared a real estate sales contract stating that the Plaintiff sold the instant land to KimB for KRW 110,00,000,000; (b) on February 21, 2008, on the part of KimB, on July 1, 2004, the Plaintiff paid KRW 50,00,000 to the Plaintiff for KRW 2,00,000,000 for KRW 2,00,000,000 for KRW 5,00,000,000 for KRW 1,00,000,000 for KRW 2,00,000,000,000 for KRW 1,00,000,000,000 for KRW 1,00,00,000 for KRW 2,00,00 for KRW 30,00,00.

(2) Therefore, the instant disposition is lawful, and the Plaintiff’s assertion is without merit.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.