The early 2013 middle 3182

The money paid by the seller to the original seller in order to avoid the resale of real estate does not constitute necessary expenses under the Income Tax Act.

In order to conceal the fact of resale of real estate, the amount paid by the seller to the original seller in the name of the buyer shall not be considered as necessary expenses under the Income Tax Act.

Article 19 of the Income Tax Act

2014Revocation of revocation of the imposition of global income tax, etc.

This △△△△

개가지

November 25, 2015

January 13, 2016

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The Defendant’s imposition of global income tax of KRW 412,041,267 for the year 207, global income tax of KRW 152,938,986 for the year 2008, global income tax of KRW 1,484,351,087 for the year 2009, and global income tax of KRW 115,474,069 for the year 201.

1. Details of the disposition;

A. On February 17, 2006, the Defendant: (a) purchased KRW 72,793 square meters of the instant land from ○○○○○○-dong, ○○○○○○-dong, from the KimA on February 17, 2006, and executed civil engineering works after dividing the instant land into KRW 3,110,00,000,000 from 207 to 2011; (b) on the premise that the Plaintiff sold the instant land in total for KRW 3,110,00,000,000 from 207 to 2011, the Defendant determined that the instant land constitutes real estate sales business under Article 122 of the Enforcement Decree of the Income Tax Act.

B. Accordingly, on April 4, 2013, the Defendant imposed on the Plaintiff the global income tax of KRW 412,041,260, global income tax of KRW 152,938,980, global income tax of the year 2008, global income tax of KRW 1,484,693,080, global income tax of the year 2009, global income tax of KRW 115,474,060, global income tax of the year 201 (including each additional tax; hereinafter referred to as the “instant disposition”).

C. The Plaintiff dissatisfied with the instant disposition and filed an appeal with the Tax Tribunal on June 30, 2013, but the Tax Tribunal dismissed the Plaintiff’s appeal on November 15, 2013.

[Ground for Recognition: Facts without dispute, Gap evidence 2-1 through 4, Gap evidence 4-1, Gap evidence 5-1, purport of whole pleadings]

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The Plaintiff merely performed services by being delegated with the division, sale, and other consulting services from co-owners of the instant land, and does not resell the instant land. The Defendant deemed the Plaintiff as a real estate sales broker who sold the instant land without registration, and thus, was unlawful.

2) Even if the Plaintiff engaged in real estate sales business, even if Article 64(2) of the former Income Tax Act (amended by Act No. 12738, Jun. 3, 2014) and Article 122(2) of the Enforcement Decree of the same Act provide that necessary expenses, etc. of the transferred assets shall be deducted from profit margins, the Defendant was unlawful since each of the following expenses (hereinafter referred to as “each expense is specified in the same manner as “the net expense”) was not deducted as necessary expenses.

No.

Amount of expenditure

non-higher

1

1,050,000,000

Sales amount paid to land owners;

2

109,000,000

Prop work expenses paid to ○○

3

481,453,264

The transfer tax payment for the original owner

4

291,517,000

L Civil Works Corporation

(Opening of Roads, Preparation of Housing Sites, etc.)

5

75,000,000

MMtory Civil Works (Additional Works)

6

54,570,870

○ Direct Management of Civil Works (Additional Works)

7

20,889,900

○○ 65 lot number, authorization and design expenses (housing site development)

8

1,372,000

○ Cost of purchasing access roads

9

25,741,540

○ Survey Expenses

10

12,011,900

○ Payment of charge for compelling the performance

11

4,100,000

○ Costs of architectural design

12

7,357,900

○ Costs of the Cadastral Construction (Adjustment of Cadastral Record)

13

2,735,100

○ Additional Costs of the Cadastral Construction

14

89,729,100

Expenses for certified judicial scrivener Kim PP (Adjustment of Public Records)

15

150,000,000

Civil Deposit in Litigation related to Kim RR

16

350,000,000

Civil Agreement in Litigation Related to Kim R-R

17

52,400,000

FF Civil Agreements

Total

2,777,878,574

3) In calculating the global income tax base of the instant case, the Defendant deemed that the Plaintiff purchased a total of KRW 1,50,000,000 for KRW 72,793 square meters of the instant land, and calculated necessary expenses by dividing the purchase area based on the said purchase area. However, among the instant land, the Defendant purchased the instant land less than 1,50,000 square meters and 630 square meters of the same ○○-dong, Dong ○○-dong, Dong ○○-dong, Dong 11,492 square meters and 11,492 square meters of forest and 630 square meters of forest and 630 square meters of forest and 20 square meters of the instant land as the Plaintiff did not resell after partition, with the agreement with the co-owners of the instant land, and subsequently returned to ○○○-dong, ○○-dong, ○-○-○, Dong ○-○, ○-○, ○-○-○, 5294 square meters.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Whether the Plaintiff engaged in real estate sales business

A) Facts of recognition

(1) On December 2005, co-owners of the remaining land except ○○ delegated the sale and purchase of the land of this case and all activities incidental thereto to ○○○. around December 2005, ○○○ signed a power of attorney to delegate all of the sale and purchase of the land of this case to the Plaintiff. The main contents of the “written consent of the Special Agreement on Land Purchase and Sale” prepared at the same time are as follows.

3. It is understood that the instant land, which is a land transaction permission zone, is subject to the land transaction permission again even after the ordinary sale and purchase, and thus, cannot specify the time of the registration of transfer. Accordingly, in relation to the transfer tax, only the amount calculated by voluntarily calculating the expected transfer tax and deducting the expected transfer tax from the Plaintiff in its own discretion, is paid to each of the instant land owners (referring to co-owners of the instant land; hereinafter the same shall apply). With regard to the transfer tax, each of the instant land, which is a land transaction permission zone, is paid by the Plaintiff only the amount calculated by deducting the transfer tax from the respective transfer tax on December 7, 2005 and receiving the sale

4. At this time, the amount of deduction of the transfer tax scheduled at the time of the contract for each prop shall be paid to the seller agent, and the sales agent shall use the amount to pay taxes at a free discretion within the time and method permitted by the law, and the △△△△ agrees to divert the said amount to the sales agent, the access road construction cost to be incurred later, the authorization cost, etc

5. In relation to the transfer tax, the transfer tax incurred by the transfer of name after the lapse of 2006 should be borne by the Plaintiff in full in order not to impose any additional burden on each prop.

Shed, on the other hand, the "land transaction delegation agreement" prepared by the plaintiff with this ○○ on November 2005 includes the following contents:

1. In the instant land purchase and sale contract, the prop representative Lee ○○ entered into a sales contract on behalf of the co-owners of the instant land at KRW 1.5 billion, and the Plaintiff is responsible for it and paid to the seller’s representative Lee ○○. All co-owners of the instant land shall not raise any objection against the total purchase amount of KRW 1.5 billion.

4. The consortium Plaintiff bears the expenses for the construction of roads and the expenses for the preservation of roads pertaining to consulting fees for the sale and purchase of the above land and access roads, and the expenses pertaining thereto shall be met from the remainder remaining after subtracting 1.5 billion won from the purchase price of the above land: Provided, That the transfer tax shall be borne by consultation between Lee-○ and the Plaintiff

On February 17, 2006, the Plaintiff drafted a real estate sales contract with the content that the Plaintiff would purchase the instant land from ○○○ and the Plaintiff from ○○○○ in KRW 1,500,000.

Applicant on November 4, 2010, the FF sent a certification of the title "a warning letter" to this ○○ in relation to the sale and purchase of the instant land.

On November 24, 2010, ○○ sent to the FF a certificate of the content of “Written Answer,” which includes the following:

【○○○ selected the Plaintiff as a purchaser of the instant land and continued to sell and purchase the instant land, and the Plaintiff intended to pay all the purchase and sale prices of the instant land. However, in the course of the sale and purchase, there were many additional costs incurred from the authorization and permission cost, civil engineering cost, access road purchase and construction cost, and various taxes. To solve this, in the middle, some of the instant land were to be paid for the said additional costs. In the middle, when each of the instant land was transferred in the name within a short period, the enormous transfer price arises and the period of authorization and permission does not coincide with the payment date of all kinds of expenses, and thus the transfer of the title was reduced once. Co-owners of the instant land sold the instant land to the Plaintiff once, but at the time of the Plaintiff’s request after the transfer of the title, the Plaintiff was to pay the Plaintiff

(v) ○○○, on November 5, 2012, submitted a written request for correction of tax base and tax amount to the △△△ Director, stating the reasons for the request that “the transfer value and acquisition value shall be changed by correcting the actual transaction amount,” as “the land in this case was transferred to this △△△△△.”

⑹ 이○○은 2012. 12. 10. 아래와 같은 내용의 거래사실확인서를 작성하였다.

“○○ transferred the instant land to the Plaintiff. The Plaintiff did not receive any additional transfer proceeds from the purchaser in addition to the terms and conditions of the initial contract during the process of transferring the instant land by divided transfer. The purchaser of the instant land ○○○-○○○○, ○○○, ○○, ○○○, ○○○, ○○, ○○-○, ○○, ○-○, ○○, ○○, ○○-○, and ○○, ○-○, ○○, ○○, and ○-○, ○-○,

⑺ 원고는 이 사건 토지를 미등기전매하였다는 공소사실로 기소되었는데 2015. 5. 15. 아래와 같은 이유로 무죄가 선고되었고 그 무렵 확정되었다(○○지방법원 ○○지원 2014고단○○5).

Reasons

【The fact that the Plaintiff, under the name of co-owners of the instant land, entered into a sales contract with the intent to resell the instant land unregistered to a third party. However, since the sales contract between the Plaintiff and co-owners of the instant land clearly becomes null and void since it is obvious that the Plaintiff had an intention to exclude or refrain from land transaction permission from the beginning, it does not constitute a case of violation of Article 2(2) of the Act on Special Measures for the Registration of Real Estate.”

[Ground for Recognition: Facts without dispute, Gap evidence 4-2, 4, 9, Gap evidence 6, Gap evidence 25, Eul evidence 2, 3, 4, and 5, and the purport of the whole pleadings]

B) Determination

(1) In full view of the above facts of recognition and the following circumstances, it is reasonable to deem that the Plaintiff entered into a nominal consulting contract with ○○○○, but in fact, purchased the instant land under its own account and responsibility and reselled it in installments. Accordingly, it is difficult to believe that part of the testimony by ○○○○○ witness’s testimony is contrary thereto.

① From November 2005, the total purchase price of the instant land was set at KRW 1,500,000,000, and the Plaintiff was determined to pay to co-owners of the instant land the amount excluding capital gains tax from the said purchase price.

② In addition to those initially agreed upon due to the sale and purchase of the instant land, the Plaintiff was obligated to bear capital gains tax.

③ On February 17, 2006, the Plaintiff drafted a sales contract with a view to purchasing KRW 1,500,000,000 for the instant land from this○○○. This also states that the actual purchaser of the instant land is the Plaintiff in the content certification and a written request for correction submitted to the head of △○ Tax Office and a written confirmation of the fact that the instant request was submitted to the ForeignF.

④ Although the Plaintiff and ○○○○ concluded a consulting agreement on land development and division, there is no separate commission agreement, etc. that the Plaintiff may receive in the event of the Plaintiff’s performance of services. If additional expenses are more than KRW 1,500,000,000, which was set out as the purchase price of the instant land, the Plaintiff bears the burden, and if the difference remains, the Plaintiff will retain.

(2) In light of the area, frequency and scale of the transfer, volume, and the other party to the transfer of the instant land known through the above recognition, income earned by the Plaintiff from the said real estate transfer act constitutes business income arising from real estate sales business with continuity and repetition of social norms (see, e.g., Supreme Court Decision 2008Du21768, Jul. 22, 2010).

C) Sub-decision

Therefore, the plaintiff's assertion is without merit.

2) Determination on the assertion of necessary expense deduction

A) The tax authority shall bear the burden of proving the tax base that is the basis of taxation in a lawsuit seeking revocation of global income tax assessment, and the tax base is deducted from necessary expenses, so the tax authority shall, in principle, bear the burden of proving revenues and necessary expenses. However, since most of the facts causing necessary expenses are in the sphere under the control of the taxpayer, and it is difficult for the tax authority to prove such facts. Thus, if it is reasonable to have the taxpayer prove the tax base by taking into account the difficulty of proof, equity between the parties, etc., it accords with the concept of fairness (see, e.g., Supreme Court Decision 2006Du16137, Oct. 26, 2007).

B) Under the following, we examine whether the Plaintiff constitutes necessary expenses subject to deduction by item claimed by the Plaintiff.

(1) No. 1 expense

In full view of the purport of the Plaintiff’s evidence Nos. 11-1 through 28, the Defendant, at the time of rendering the instant disposition, deemed KRW 1,500,000,000 for the purchase price of the instant land, and KRW 605,00,000 for the civil construction cost, and payment fee of KRW 107,171,000 for the Plaintiff’s total expenses, and the Defendant calculated the tax amount by deeming the amount of KRW 30,389, which is the amount calculated by dividing it into KRW 72,793,00 for the purchase area of the Plaintiff’s land, as the necessary expenses per

Therefore, since the above purchase price of KRW 1,050,000 as claimed by the Plaintiff was already recognized as necessary expenses (or was recognized as exceeding KRW 450,000,000,000, rather than actually paid by the Plaintiff), the Plaintiff’s assertion that this part of the additional deduction is without merit.

Shes 4 to 9, 12, 13, 14 expenses

The above costs constitute necessary expenses. However, the sum of each of the above costs is KRW 568,913,410, which the Defendant recognized as necessary expenses in the course of calculating the amount of tax for the instant disposition, and it seems that the necessary expenses had already been recognized as necessary expenses because it does not exceed KRW 712,171,00 as necessary expenses (= KRW 605,00,000 + payment fee of KRW 107,171,000). There is no evidence that the expenses claimed by the Plaintiff are different from the items already recognized as necessary expenses by the Defendant.

Therefore, the above amount cannot be deducted from the necessary expenses.

Article 2(2), 3(3)

In order to conceal the fact of resale of real estate, the amount paid by the seller to the original seller in the name of the buyer shall not be deemed as necessary expenses under the Income Tax Act (see, e.g., Supreme Court Decision 91Nu1844, Nov. 26, 1991).

The term "protop work cost (2.1 billion won) paid by the Plaintiff to ○○○○, as claimed by the Plaintiff, means the money that the Plaintiff paid to ○○, in return for the promise to develop and trade the land from co-owners of the instant land, and prepared documents necessary for the receipt and registration of the purchase price. Thus, it is reasonable to deem that the said money and the money that the Plaintiff paid the capital gains tax of the co-owners of the instant land to ○○, instead of the transferor, was borne by the Plaintiff in return for concealing the unregistered pre-sale. Therefore, it cannot be deemed as necessary expenses.

Applicant Doz. 10, 11

(A) Nos. 10

In full view of the purport of the Plaintiff’s evidence No. 17 and the entire pleadings, KRW 12,01,90 for the enforcement fine of 00,01,90 claimed by the Plaintiff is the construction of a structure without permission on the instant land and it is difficult to view it as necessary expenses corresponding to

(B) No. 11 expenses

The statement No. 18-1 alone is insufficient to deem that the Plaintiff paid KRW 4,100,000 to the ○○ Construction side as design cost, and there is no other evidence to acknowledge it.

(v) Serial 15,16 expenses

The Plaintiff paid KRW 500,000,000 to Kim RR and UNV for the purpose of securing ownership of the instant land that was provisionally seized by Kim RR, which is the total amount of KRW 500,000,000,00 for the purpose of securing the ownership of the instant land. The Plaintiff asserts that the cost of lawsuit directly spent to secure the business asset under Article 163(1)2 of Enforcement Decree

However, in full view of the overall purport of evidence Nos. 4-5 through 8, 10 through 13, Gap evidence No. 22-1, 2, Eul evidence No. 23, Eul evidence No. 12-1, 2, and 3, the above money paid by the plaintiff was sold to UNV on February 17, 2006, and the sales contract was terminated, and when the sales contract was terminated, it can be acknowledged that the money was paid in the course of resolving the problems such as penalty and double selling of the land.

Therefore, it is reasonable to deem that this was disbursed to resolve the dispute arising from the above sales contract between Lee ○○ and YuV, and therefore, it cannot be deemed necessary expenses disbursed in relation to the instant sales contract between the Plaintiff and the instant land co-owners.

⑹ 순번 17 경비

On April 16, 2012, the Plaintiff filed a lawsuit against EF among the co-owners of the instant land against ○○ District Court ○○○○○○○○○○83, which claimed for the registration of ownership transfer. In the instant lawsuit, the Plaintiff asserts that the agreed amount should also be included in necessary expenses on the ground that the Plaintiff paid the FF the said money in the name of agreement and could complete the registration of ownership transfer in the future of the Plaintiff.

However, there is no dispute between the original and the Defendant that the land subject to the Plaintiff’s claim for the registration of ownership transfer against the FF is not the land subject to the instant global income tax.

Therefore, when imposing global income tax on the relevant parcel of land, it is necessary to report it to the necessary expenses and obtain deduction, and it is not necessary expenses in the disposition of this case, so this part of the Plaintiff’s assertion is without merit.

C) Sub-decision

Therefore, we cannot accept all the plaintiff's argument.

(iii) the area of land subject to the calculation of necessary expenses;

According to the facts and evidence seen earlier, the Plaintiff determined the purchase price of 72,793 square meters, which is the entire area of the instant land, as KRW 1,50,00,000,00, and the Plaintiff was paid based on the total area including seven parcels of land (one parcel returned according to an agreement with the co-owners of the instant case, and five parcels of land divided under the name of SikK, the Court of Justice, the EE, and the two parcels of land and five parcels of land returned according to the agreement with the co-owners of the instant case) that the Plaintiff should exclude the purchase price of 72,793 square meters of the entire area

Therefore, this part of the plaintiff's assertion is without merit.

3. Conclusion

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