Cho Jae-2016-China-2161 (No. 22, 2016)

Whether the plaintiff recognizes the necessary expenses of the amount claimed as brokerage commission, and if the transfer income tax of the transferor was paid by the transferor on the pre-sale basis, whether the already paid tax deduction is made.

The amount paid by the Plaintiff is not a brokerage commission for the transfer of the real estate of this case, but cannot be deemed as the necessary expenses, and even if the Plaintiff paid the capital gains tax, etc. imposed in the name of the former clan as a substitute for the transfer of the real estate of this case, such tax deduction cannot be made in the disposition of this case against the Plaintiff.

Article 97 of the Income Tax Act, Article 163 of the Enforcement Decree of the Income Tax Act

2016Gudan6328 Disposition of revoking capital gains tax

○ ○

Head of △ District Office

August 30, 2017

December 13, 2017

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 of KRW 89,282,520 to the Plaintiff on November 28, 2015 shall be revoked.

1. Details of the disposition;

A. On January 3, 2011, 201, the YYA clan (hereinafter referred to as the "the clan of this case") whose representative is the Plaintiff transferred the ownership registration under its own name ** 1* * * 20,237 square meters of woodland (hereinafter referred to as the "real estate of this case") to ED and one other 200 million, and reported and paid KRW 87,598,240 as capital gains tax to the head of AA, and the head of AA notified the head of AA of AA of a tax office of correction and payment of KRW 46,613,830 of the additional tax amount to the clan of this case, and the clan of this case paid all of them.

B. The Defendant conducted a tax investigation of capital gains tax on the Plaintiff on the basis of taxation data that the Plaintiff sold the instant real estate without registration, and as a result, the Plaintiff acquired the instant real estate from the instant clan on March 23, 2007 and sold the instant real estate to one other than DoD, on January 3, 2011, for the reason that the said DoD had not been registered for KRW 600 million, adding KRW 46,480,000 to the additional tax of KRW 89,282,520 to the Plaintiff as of November 28, 2015 (hereinafter “instant disposition”).

C. On February 12, 2016, the Plaintiff appealed against the instant disposition, but was dismissed. On June 3, 2016, the Plaintiff filed an appeal with the Tax Tribunal, but was dismissed on September 22, 2016.

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1, 2, Eul evidence Nos. 1, 2, and 6, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) The assertion on the brokerage commission

Of the brokerage commission paid by the Plaintiff to the largestB in connection with the instant disposition, the Defendant recognized only KRW 62 million as the necessary expense. However, in addition, the Plaintiff’s provisional seizure of KRW 33 million as the brokerage commission for the instant real estate shall be deemed as the necessary expense, and the sum of KRW 43 million paid to the largestB on January 17, 201 and KRW 10 million paid on February 10, 201, should be deemed as the sum of KRW 43 million as the necessary expense.

(2) Claim on the substitute payment of capital gains tax

The Plaintiff paid capital gains tax of KRW 133,840,650 and local income tax of KRW 13,384,050, which was imposed in the name of the instant clan, in lieu of the said KRW 147,224,70 shall be deemed as necessary expenses.

(3) Claim as to an unfair non-declaration penalty tax

The Defendant deemed that the Plaintiff had the objective of evading tax, and thus, imposed KRW 46,480,00 on the Plaintiff, but cannot be deemed to have had the objective of evading tax, and thus, this part of the disposition of imposition was unlawful.

B. Relevant statutes

As shown in the attached Form.

C. Determination

(1) Determination on the assertion of brokerage commission

Considering that the burden of proof of necessary expenses lies in the tax authority, but most necessary expenses are favorable to the taxpayer and the facts that generated necessary expenses are located in the area controlled by the taxpayer and it is easy to prove them, it is consistent with the concept of fairness to recognize the necessity of proof to the taxpayer by permitting the presumption of non-existence with respect to necessary expenses that the taxpayer does not perform the duty of proof (see Supreme Court Decision 2002Du1588, Sept. 23, 2004).

According to the record Eul's evidence No. 7, it is difficult to view the plaintiff's claim for provisional seizure of the real estate of this case as necessary expenses for the transfer of the real estate of this case to 33 million won on the ground that the plaintiff was not paid 50 million won among the 50 million won of the real estate brokerage commission of this case with the debtor around the beginning of December 2010, 2010, and the plaintiff applied for provisional seizure of the real estate owned by the clan of this case. However, to be included in necessary expenses, the plaintiff's transfer of the real estate of this case to 40 million won should be a brokerage commission for the transfer of the real estate of this case to Do and 1, but even according to the above fact of recognition, the provisional seizure application is a clan which is not the debtor for provisional seizure, and since the date of application for provisional seizure around the beginning of December 2010, it is difficult to view that the plaintiff's claim for provisional seizure of this case was the maximum amount of the plaintiff's real estate brokerage fee of this case to 4B.

(2) Determination on the assertion of substitute payment of capital gains tax

Even if a transferee of real estate assumes the transfer income tax, etc. to be borne by the transferor on behalf of the transferor in order to sell unregistered real estate, it does not constitute necessary expenses under Article 45(1)1 of the Income Tax Act and Article 94(1) of the Enforcement Decree of the same Act, since it bears the transferor on behalf of the transferor in return for concealing the fact of resale by selling unregistered assets, it does not constitute necessary expenses under Article 45(1)1 of the Income Tax Act and Article 94(1) of the Enforcement Decree of the same Act (see Supreme Court Decision 91Nu1844, Nov. 26, 1991). Therefore, even if a transferee paid transfer income tax imposed in the name of the clan of this case and KRW 13,840,650, and local income tax imposed

In regard to this, the plaintiff claimed that the defendant deducted 87,598,245 won from 133,840,650 won paid in the name of the clan of this case as the payable tax amount, and that the remaining 46,242,405 won ( = 133,840,650 - 87,598,245 won) should be deducted from the amount paid in the name of the clan of this case since there is no reason to deduct only part of the amount paid by the plaintiff. In rendering the disposition of this case, the defendant asserted that it was a kind of mutually advantageous measure to deduct 87,598,245 won from the amount paid in the name of the clan of this case from the amount paid in the name of the clan of this case.

Therefore, it is a system to prevent double taxation in cases where one has already paid his tax, and even according to the Plaintiff’s assertion, it is merely a payment of the tax to be borne by the clan on behalf of the Plaintiff, and thus, in rendering the disposition of this case against the Plaintiff, it cannot be said that the already paid tax amount should not be deducted. Even if the Defendant, as a beneficial measure, deducts some of the money as the already paid tax amount, and does not have the right to demand the Plaintiff to deduct the remainder of money. Accordingly, this part of the Plaintiff’s assertion is rejected.

(3) Determination as to the assertion of unfair non-declaration of customs duties

Under the tax law, in cases where a taxpayer violates various obligations, such as a return and tax payment, without justifiable grounds, as prescribed by the individual tax law, in order to facilitate the exercise of the right to impose taxes and the realization of a tax claim, the taxpayer’s intention and negligence is not considered. On the other hand, such sanctions should be imposed with respect to nonperformance of obligations under the tax law unless there are justifiable grounds to believe that it is unreasonable for the taxpayer to be unaware of his/her duty, or that it is unreasonable for the taxpayer to expect the fulfillment of his/her duty. (See, e.g., Supreme Court Decisions 96Nu18076, Jul. 24, 1998; 2009Du23747, May 13, 2010; 201Du1622, Apr. 28, 2011).

According to the statement in Eul evidence No. 4, at the time of questioning at the prosecutor's office of the case in which the largestB filed a complaint against the plaintiff for forging private documents, etc., the plaintiff stated that the transfer of the real estate of this case made a non-sale of unregistered clan in order to avoid paying taxes and paying taxes. Accordingly, according to the above fact of recognition, the plaintiff's assertion on this part is not reasonable since it was the purpose of tax evasion to the plaintiff.

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.