National Tax Service Review and Transfer 2012-0029 ( October 25, 2012)

If the acquisition value is based on the conversion value, necessary expenses shall be recognized only as estimated deduction amount.

The additional and increased additional charges cannot be deemed a disposition that naturally occurs under the provisions of law without the final procedure of the tax authority to determine whether it is a disposition subject to appeal litigation, and thus, the part seeking the revocation thereof is unlawful and necessary expenses are recognized only when the acquisition value is converted into the estimated deduction amount, and therefore necessary expenses, such as brokerage fees, cannot

Article 97 of the Income Tax Act

Article 21 of the National Tax Collection Act

2012Guhap5900 Revocation of Disposition, etc. of Imposition of Capital Gains Tax

The AA

Head of the tax office

October 10, 2012

October 31, 2012

1. The part concerning the claim for revocation of the disposition imposing additional dues and aggravated additional dues and the claim for the payment of KRW 00 shall be dismissed in all of the lawsuit in this case.

2. The plaintiff's remaining claims are dismissed.

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

The defendant imposed capital gains tax of 00 won on the plaintiff on September 9, 201, and imposition of additional 00 won on October 1, 201, and imposition of additional 00 won on the plaintiff on December 1, 2011, and the imposition of additional 00 won on December 1, 201, and January 3, 201, and February 1, 2012, and April 3, 2012, the imposition of increased additional 00 won on the plaintiff on April 3, 2012 shall be revoked. The defendant paid 00 won to the plaintiff (the plaintiff stated in the complaint as of April 30, 201, while Gap evidence 4, and evidence 1, and 4, the same shall apply to each of the above dispositions as of January 1, 2012, as a whole).

1. Details of the disposition;

A. On August 20, 1982, the Plaintiff acquired OO 000 and one parcel of O apartment 000 Dong 000 (hereinafter “previous apartment”).

B. A reconstruction project is conducted with respect to the previous apartment (approval of the project plan on February 2, 200). The Plaintiff sold OO 000 OO 000 0000 0000 'OOO' in Yeongdeungpo-gu Seoul (hereinafter "the apartment of this case") and completed registration of preservation of ownership on August 12, 2003 in its name.

C. The sales price of the apartment in this case was determined to be KRW 000, and the previous apartment was assessed to be KRW 000, and the plaintiff paid KRW 000 (=00 - 000) as settlement money.

D. On March 15, 2011, the Plaintiff transferred the instant apartment at KRW 000 to KimD, and the ownership transfer registration was completed in the name of KimD on April 15, 201 with respect to the instant apartment.

E. On June 27, 201, the Plaintiff calculated transfer margin to the Defendant as KRW 000, as indicated in the separate calculation statement pursuant to Article 166(2) and (1) and (3) of the Enforcement Decree of the Income Tax Act, and filed a preliminary return on the tax base of KRW 000,000, the transfer income tax amount calculated by applying the tax rate of KRW 00,000 (=00 - 000,000), and the acquisition value of the previous apartment and its appurtenant land in calculating the transfer margin was calculated as the conversion value under Article 166(3) of the Enforcement Decree of the Income Tax Act on the grounds that the acquisition value of the previous apartment and its appurtenant land cannot be confirmed.

F. On June 29, 201, the Plaintiff paid KRW 000 among the above KRW 000, and around August 29, 2011, around 201, filed a final tax base return on capital gains tax to reduce the amount of KRW 000 out of the amount paid in installments by additionally deducting the amount of KRW 000 for previous apartments, KRW 00 for real estate brokerage fees, KRW 000 for certified judicial scrivener expenses, and KRW 000 for certified tax accountants’ advisory fees, and KRW 000 for certified tax accountants’ advisory fees.

G. On September 9, 201, the Defendant did not recognize the instant issues as necessary expenses, and notified the Plaintiff of the rectification and notification of KRW 000 (the due date for payment: September 30, 201) of the capital gains tax for the year 201 (hereinafter referred to as “instant disposition”), and notification of the payment of KRW 00 of the additional charges on October 1, 201, and KRW 1, 2011, and December 1, 201, 201, respectively, of KRW 00 of the increased additional charges (hereinafter referred to as “the instant additional charges and increased additional charges”).

H. The Plaintiff, who is dissatisfied with the instant disposition, filed a request for examination with the Commissioner of the National Tax Service on February 20, 201 through an objection on November 15, 201, but was dismissed on April 25, 2012.

[Ground of Recognition] The non-speed facts, Gap evidence 1-2, Eul evidence 1-2, Eul evidence 3, Eul evidence 1-2, Eul evidence 2-3, Eul evidence 3-2, Eul evidence 1-3-2, and Eul evidence 4, and the purport of the whole pleadings

2. Judgment on the defendant's main defense

A. Part on a claim to revoke a disposition imposing additional dues and aggravated additional dues

1) The defendant's assertion

With respect to the Plaintiff’s seeking revocation of the disposition imposing additional dues and aggravated additional dues, the Defendant asserts that the notification of additional dues and aggravated additional dues does not constitute an administrative disposition, and that the part of the claim seeking revocation of the disposition imposing additional dues and aggravated additional dues is unlawful.

2) Determination

The additional dues or increased additional dues provided for in Article 21(1) and (2) of the National Tax Collection Act are naturally generated by a legal provision without a final procedure by the tax office if national taxes are not paid by the due date (see Supreme Court Decision 2005Da15482, Jun. 10, 2005). Therefore, the part of the claim for revocation of the additional dues or increased additional dues in the lawsuit in this case is unlawful.

B. Part on the claim for payment of KRW 000

1) The defendant's assertion

Although the acquisition value of the previous apartment is KRW 000, the plaintiff asserts that the tax accountant paid excessive capital gains tax of KRW 000,000 due to mistake, and the defendant asserts that in order for the plaintiff to receive the above amount, the plaintiff filed a request for correction of capital gains tax and then rejected the defendant, the plaintiff immediately filed a request for correction of the above amount without filing a request for correction even though the plaintiff did not file a request for correction, and that the above claim for payment of KRW 00 in the lawsuit of this case is unlawful.

2) Determination

When the plaintiff is a tax item on the method of tax return, and the transfer income tax is paid excessively in excess of KRW 000,00 and is returned as alleged, the plaintiff must file a request for correction with the defendant pursuant to Article 45-2 of the Framework Act on National Taxes, and when the request for correction is not accepted, the defendant must be requested to revoke the rejection disposition of the request for correction after going through the appeal procedure and without filing a request for correction, and can not immediately seek a return against the defendant. Therefore, the part of the claim for payment of KRW 00 in the lawsuit in this case is unlawful (not only because the transfer income tax belongs to the State as a national tax, but also the transfer income tax shall belong to the State, and the defendant who is an administrative agency which is only the administrative agency to which the defendant belongs, is not qualified, and this part of the claim is unlawful)

3. Judgment on the merits

A. The plaintiff's assertion

The key issue amount of this case should be deducted as necessary expenses, and the disposition of this case taken by the defendant without deduction should be revoked illegally.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

According to Article 97 (2) of the Income Tax Act [Article 97 (3) of the former Income Tax Act (amended by Act No. 10408, Oct. 27, 2010)] and Article 163 (6) of the Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 23588, Feb. 2, 2012), where the acquisition value is based on the conversion value as the actual transaction value at the time of acquisition cannot be confirmed in calculating necessary expenses for capital gains, the necessary expenses other than the acquisition value is recognized only as 3% of the standard market price of the land or building at the time of acquisition (estimated deduction amount). As seen in this case, as long as the acquisition value of the previous apartment and its appurtenant land is calculated based on the conversion value, the issue amount corresponding to separate necessary expenses other than the estimated deduction amount as stated in Article 1.2 (b) of the attached Table 1.

4. Conclusion

Therefore, the part concerning the claim for revocation of the disposition imposing additional dues and aggravated additional dues and the part concerning the claim for payment of KRW 000 is unlawful, and all of them are dismissed, and the remainder of the plaintiff's claims are dismissed, and it is so decided as per Disposition.