early 2012 Middle 0951 (Law No. 112, 2012)

It is difficult to recognize that real estate brokerage fees equivalent to necessary expenses are paid.

In connection with the sale and purchase of real estate, a person who was aware of the fact that he/she was not qualified as a broker was requested to act as a broker, and at the time of selling real estate, he/she was dealt with several days of the plaintiff, and referred himself/herself as the head of the plaintiff's secretary at the time of selling real estate. It is difficult to recognize as necessary expenses in light of the fact that fees have been allocated to the persons who participated in the sale of real estate regardless of the relationship

2012Gudan1966 Revocation of Disposition of Imposing capital gains tax

United StatesAAA

The Director of Incheon Tax Office

March 26, 2013

May 7, 2013

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposition of capital gains tax of KRW 000 for the year 2010, which was made by the Plaintiff on January 16, 2012, is revoked.

1. Details of the disposition;

A. On July 18, 2008, the Plaintiff purchased 000 m20,796 m20,000 m20,000 m20,000 m20,796 m2, such as 00 m2,509 m2 (hereinafter referred to as “the instant real property”) from ChoB in Gyeong-dong, Chungcheongnam-do, 2008, and completed the registration of ownership transfer on August 4, 2008, 00 m20, 00 m2,00 m2,00 m2, and m2,00 m2,00 m2,00 m2,00 m2,00 m2,00 m2, and m2,00 m2,00 m2,00 m2,00 m2,00 m2,00 m2,00.

B. On November 30, 2010, the Plaintiff reported transfer income tax by appropriating the transfer value of the instant real estate to the Defendant at KRW 000, and the acquisition value at KRW 000, and necessary expenses at KRW 000.

"C. On January 16, 2012, the Defendant did not recognize KRW 000 among the 000 won appropriated by the Plaintiff as a brokerage commission, and recognized only the remaining KRW 000,000, and notified the Plaintiff of KRW 000,000, capital gains tax for the year 2010 (hereinafter referred to as the "the original disposition in this case"). The Plaintiff dissatisfied with this, the Plaintiff filed an appeal with the Tax Tribunal on February 14, 2012, and the Tax Tribunal decided on July 20, 2012 that among the 000 won denied by the Defendant, the Plaintiff should be recognized as a brokerage fee and included in the necessary expenses.

E. On August 16, 2012, according to the decision of the Tax Tribunal, the Defendant issued a notice of correction and correction of KRW 000,000, which reduced the tax amount of the original disposition of this case from the tax amount of the original disposition of this case (hereinafter “instant disposition”).

[Reasons for Recognition] The non-satched Facts, Gap 1-1-5, 7, 8, 9, and 1-1 and 2, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff paid to Kim II the sum of KRW 000, and KRW 000,000, and KRW 000 to KimJ, with the brokerage commission for the instant real estate, while the Plaintiff paid KRW 000 and KRW 0000,000, and KRW 000,000, out of KRW 00, and KRW 000, which the Defendant paid to KimJ, and KRW 000, which was paid to KimK, to the Plaintiff is unlawful as necessary expenses, and the instant disposition was taken against the Plaintiff without recognizing the remainder 000,000, as necessary expenses.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) In a lawsuit seeking revocation of taxation, necessary expenses are favorable to taxpayers, and most of the facts that generated necessary expenses are located in the area controlled by taxpayers, and therefore, most of the facts that generated necessary expenses are located in the area controlled by taxpayers. Considering that it is easy to prove them, it is also consistent with the concept of fairness to recognize the necessity of proof to taxpayers by allowing presumption of non-existence with respect to necessary expenses for which taxpayers do not perform the verification activities (see Supreme Court Decision 2002Du1588, Sept. 23, 2004).

(ii) the facts of recognition

A) The Plaintiff requested Kim II, who was known to the general public, to sell the instant real estate, and after that, Kim II, who is an intermediary assistant of the "PP agency office" in the Incheon OOdong, and PH requested the KimJ in order, which is an intermediary assistant of the "PP agency office" in the Incheon Gu-dong, to act as a broker of the "LL real estate" in the order. The GJ agreed that the buyer was introduced through KimK, who was engaged in the brokerage business in Gyeongcheon-si, Gyeongcheon-si, and that the sale of the instant real estate was made, and that the sales of the instant real estate was paid KRW 00 per square year at the time of the sales contract.

B) On October 1, 2010, the Plaintiff paid KRW 000, and KRW 000,000 to KimJ on October 7, 2010, and KRW 000,000 in total to Kim II on October 7, 2010.

C) Of the KRW 000,000 received from the Plaintiff from the Plaintiff, Kim J gave Ha the said KRW 000,000 again to Kim II as demanded by Kim II. In addition, KimK sent KRW 000,000 out of the KRW 000 received from the Plaintiff to Kim II’s account as demanded by Kim II.

D) Kim II dealt with the Plaintiff’s various affairs and participated in the purchase and sale of the instant real estate without being qualified as an intermediary, and, in particular, at the time of selling the instant real estate, referred himself to as the Plaintiff’s secretary at the time of the sale of the instant real estate.

[Ground of recognition] The respective descriptions in Gap 2, 3, 4, and 2, and 3 (including numbered) , witness HaHa, Kim J, and Kim II's testimony, as a whole, and the purport of the whole pleadings

3) According to the above facts, the plaintiff's 000 won out of the 000 won that the plaintiff paid to Kim II in connection with the intermediation of the sale and purchase of the real estate in this case was brought to Kim II, and Kim II, regardless of the relationship between the plaintiff and KimOO, and regardless of the arrangement of brokerage commission, seems to have been distributed at will to HaH and KimJ, and KimK, and there is no other evidence to support this.

3. Conclusion

Then, the plaintiff's claim of this case is dismissed for lack of reason.