Cho High 2014Gu5683 (2015062)

Determination of capital gains tax on business rights transferred along with fixed assets for business;

Of the contract price for the facility of this case, at least the part of the contract price for the facility of this case applied by the defendant constitutes the price for transfer of goodwill.

Article 94 of the Income Tax Act

2015Guhap23252 Revocation of Disposition of Imposing capital gains tax

The contract for facilities was concluded.

D. On August 13, 2012, the Plaintiff transferred income tax on the instant real estate sales contract to the Defendant.

20,975,00 won was reported and paid.

E. On May 16, 2014 to June 11, 2014, the Defendant conducted an investigation of capital gains tax on the Plaintiff. The instant case

Of the facility contract price of KRW 400 million, KRW 120,000,00 which the Plaintiff submitted evidentiary documents (the first floor GG store)

The remainder 280 million won, excluding the facility cost of 80 million won, the second floor facility cost of 40 million won), shall not be less than the remainder 280 million won;

Transfer as a business right to transfer along with fixed assets for business under Article 94(1)4 of the Income Tax Act;

It was determined that the income tax is subject to taxation.

F. Accordingly, the Defendant notified the Plaintiff of the result of the tax investigation on June 16, 2014, and on August 2014.

1. Correction and notification of capital gains tax of KRW 126,750,550 (including additional tax) for the Plaintiff in 2012 (including additional tax)

De 'the instant disposition' was called ‘the instant disposition'.

G. The Plaintiff appealed and filed an appeal on October 27, 2014, but the Tax Tribunal decided on October 27, 2015.

6. 22. A decision of dismissal was made.

Facts without dispute over the basis of recognition, Gap evidence 2, 3, 5, 7, 9, 10, 13, and Eul evidence 1 through 3

Each entry, the purport of the whole pleadings, including branch numbers,

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The Plaintiff’s interior, facilities, fixtures, etc. separate from the instant real estate sales contract

Since a sales contract for the facility of this case was concluded and received KRW 400 million, the contract price for the facility of this case

the contract of this case between the plaintiff and the BB. The contract of this case

In light of the Plaintiff’s business rights, the number of years following the Plaintiff’s loss of business rights;

It is merely a compensation for the following, not a transfer of the goodwill itself. The taxation of the instant facility contract is imposed on the instant facility

The defendant's disposition of this case based on the premise that the transfer of business rights is included is illegal.

2) Even if business rights are included in the instant facility contract, the Defendant’s goodwill

The method of calculating the amount is unlawful. The defendant shall calculate the value of the goodwill through a reasonable method.

Despite the fact that the remainder after deducting the amount of evidence submitted by the plaintiff from the total price is the goodwill.

The amount of assessment has been evaluated by mistake.

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

1) According to Article 94(1)4 of the Income Tax Act, the Decree transferred along with the fixed assets for business

Transfer of business rights (no separate evaluation of business rights), but they are included in assets under social norms;

business rights recognized as such and the obtaining of authorization, permission, license, etc. from an administrative agency;

Income generated from the transfer of a capital gains tax shall be subject to capital gains tax.

“business rights” means the tradition, social credibility, location conditions of the enterprise, special manufacturing technology or characteristics of the enterprise;

A business engaged in the same kind of business due to the monopoly of manufacture and sale, including the existence of a veterinary trading relationship.

Intangible property, such as excess profit-making capacity, which is capable of making profits greater than those raised by other enterprises;

Reference to the appropriate value (see, e.g., Supreme Court Decision 84Nu281, Apr. 23, 1985) and the location of a store.

The main point of the business is also an important factor of the goodwill.

2) The above facts and relevant laws and regulations, Gap evidence Nos. 1, 4, 8, 13, and Eul evidence Nos. 5 to 7

all of the following circumstances may be known by including each description and the entire purport of the pleading:

At least 280,000,000 won out of the contract price of the facility of this case, the substance of the business

It can be sufficiently recognized that the transfer of rights is the consideration.

① On July 1, 2005, the Plaintiff’s clothes store in the name of “OOO” in Daegu-gu OOdong.

In operation, around 2006, AA leases part of the instant real property from AA and subsequently purchases it.

was continued until the contract of the facility of this case, and the plaintiff continued to conduct the clothing business in the real estate of this case

It is recognized that it has accumulated intangible property value, such as business credit and transactional relationship. "OO"

- Of the first half-year sales from 2010 to 2012, the credit card sales amount of KRW 320 million on a half-yearly basis.

The amount of KRW 50,000 to KRW 540,000,000, immediately before the contract for the instant facilities, is the upper half of 2012

There is no particular difference in management difficulties.

② OB from August 2002 to August 2002, 2002, the Daegu OB PY OE

The store shall be a place in which the store is operated, and a business district of fashion sales centered on the store.

the real estate of this case was activated, and the real estate of this case is located immediately following the BB store.

The business interest in the location was significant. BB had extended the store for fashion.

to purchase the instant real estate from the Plaintiff, and this Decree between the Plaintiff and the Plaintiff.

It is inevitable to reflect the business rights according to the advantages of the business in the price.

③ The Plaintiff and BB set the time facilities among the instant facilities at KRW 320 million.

In this regard, the 1st floor facility cost for GG stores is clear that the Plaintiff’s expense expenditure evidence is obvious.

80 million won in total, 120 million won in total, and 40 million won in the second half of 200,000,000 won in the second half of 208.

Han Ho Ho-ho, glass, and floor construction (A evidence 12-1, 3-5), and stairs made on February 2012

The plaintiff is only KRW 9,300,000 on the repair work (Evidence A No. 12-12) in total. 9,300,000.

9. 14,00,000 won (Evidence 12-9) for construction costs, such as windows, etc., entrusted by an O company; and

로 취득가액에서 공제되었다 �. 그 중 2층 시설비 4,000만 원은 카페 시설을 위한

BB was scheduled to be used as a clothing store after the purchase of the instant real property, 1

The floor facility also intends to sell even if BB was scheduled to be used as a clothing store.

BB uses existing interior facilities due to different kinds of clothes, characteristics of customers, etc.

(1) The facilities installed by the tegrative Corporation are likely to have been difficult and are consistent with the building;

That is not a separate trade subject to a separate trade shall be included in a substantial part;

In full view of the fact that the remaining construction cost has old time and that the amount is small, the plaintiff shall not be entitled to the payment.

It is also considered that the real estate of this case is not equipped with documentary evidence of facility construction.

In addition to the Do, separately from the building, the installation cost of the first and second floor sales floor in this case is 320 million won.

It is the same example.

④ The Plaintiff and BB set the equipment cost of the instant facilities as KRW 80 million.

However, evidence submitted by the plaintiff in relation to the cost of equipment is the heating and cooling machine purchased on November 2008 (AA No. 12).

The heating and cooling apparatus, Maalking, Maalking (Evidence 12) purchased from May 2, 201 to December 2, 2011;

8,10,11) is only related to 8,10,000 won, and the total amount is only 19,760,455 won, and the plaintiff's significance.

The clothes store between the store and BB are different in terms of the characteristics of clothes and customers.

The plaintiff may use a molet as it is, and most of the equipment is against the plaintiff.

Comprehensively taking into account all the facts that the plaintiff could have withdrawn, the plaintiff shall furnish evidence of the cost of supply.

Taking into account the fact that it is not possible to do so, 8,000 proceeds, such as driving, balking, air conditioners, etc.

It is also very rare to determine as a full won.

(5) BB shall, immediately after the purchase of the instant real estate, bear costs of KRW 5,934,000 around July 2012.

The removal work of facilities (e.g., removal, walls, floors, etc.) was implemented.

6. Taking full account of all the above points, at least 2 out of the contract price for the instant facilities

80,000,000 won is not the actual cost of the facility and the cost of the equipment but the location of the real property in this case.

It can be seen as a consideration for business rights, the main factor of which is business interest.

3) At least 280,000,000 won out of the contract price for the instant facilities is the actual transfer of business rights.

Since it is recognized that the price for the contract of the facility of this case is the price for the loss of the plaintiff's business right.

the source that only the compensation for the future profits, but not the compensation for the transfer of the goodwill itself;

The intentional assertion is without merit (Supreme Court Decision 2006Du9535 Decided January 31, 2008, which is cited by the plaintiff).

The judgment of the court below in this case cannot be applied to this case because the legal relation of this case is different from this case

It is necessary to further examine the argument that there was an error in calculating the operating price among the proceeds under the contract for the snow contracts.

without reason.

3. Conclusion

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

OO

O Head of tax office

November 4, 2015

December 23, 2015

1. The plaintiff's claim is dismissed.

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

The imposition of capital gains tax of KRW 126,750,550 (including additional tax) for the year 2012, which was vested in the Plaintiff on August 1, 2014 by the former defendant of the Gu office ("125,750,000" written in the written complaint's statement of claim seems to be a clerical error).

1. Details of the disposition;

A. On March 26, 2010, the Plaintiff purchased, from AAA on March 26, 2010, an O-O-O large of 705 square meters and a total of 705 square meters on its ground, a commercial building with two floors (hereinafter referred to as “the instant real estate”) for KRW 2.5 billion, and completed the registration of ownership transfer on May 14, 2010.

B. On March 26, 2012, the Plaintiff sold the instant real estate at KRW 2.72 billion, and completed the registration of ownership transfer on June 11, 2012 between BB and BB on March 26, 2012, the Plaintiff sold the instant real estate at KRW 2.7 billion, and the Plaintiff completed the registration of ownership transfer on June 11, 2012. Meanwhile, as between BB and B B on March 26, 2012, separately from the instant real estate sales contract, the sales contract, including the following equipment, the total purchase price of which is KRW 400 million (hereinafter “B”).