Examination Income 2007-0056 (29 August 2007)

Appropriateness of the assertion that no income accrued from the transfer of land due to the non-performance of the special agreement

Each total revenue for the year in which the purchase price is received from the transferee of the land and the ownership is transferred shall be calculated, and even if it is anticipated that additional expenses are incurred for the construction of roads and the change of land category, which are matters under a special agreement in the future, they shall not be deducted as necessary expenses unless they have

The contents of the decision shall be the same as attached.

Article 2 (Scope of Tax Liability of the Gu Income Tax Act)

Article 5 (Taxable Period of Gu Income Tax)

1. The plaintiff's claim is dismissed.

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

On January 5, 2007, the Defendant revoked a disposition imposing global income tax of KRW 97,051,940 in 2004 and global income tax of KRW 33,283,910 in 2005.

1. Circumstances of the disposition;

A. As between May 6, 2004 and May 31, 2004, the Plaintiff purchased a total of 64.149 square meters from 00 ○○○-ri, ○○○○-ri, 256 Forest land, and divided and converted the registration into 322-1 to 21 forest land (hereinafter “○○-ri land”) and 322-1 to 21 forest land (hereinafter “○-ri land”). From May 8, 2004 to October 15, 2004, the Plaintiff transferred 19 parcels among them to Nonparty Kim○-ri, etc., and did not file a report on capital gains tax, etc. related thereto.

B. On June 21, 2005, the Plaintiff purchased 18-1 forest land of 00,375 square meters in ○○○-si, ○○○-si, ○○○-si, ○○○-si, and divided and registered the registration into 13-13 through 21 forest land of 23-1 of the same Ri (hereinafter “○○-ri land”). On December 22, 2005, the Plaintiff transferred 8 parcels out of it to Nonparty’s ○○-si, etc., and in relation thereto, reported that there was no tax amount to be paid in 6.6 million won due to transfer loss.

C. As between October 15, 2004 and May 16, 2005, the Plaintiff purchased a total of 19,789 square meters of land from 00 ○○-ri, ○○-ri, and 11 lots of land, and divided it into 108-1 to 11, 14, 15, 109-5 to 17 lots of land before 109-5 to 8, 2005 (hereinafter referred to as “○○-ri land”). The Plaintiff transferred it to Nonparty’s heading, etc. in cooperation with ○-ri, ○-ri, ○○-ri, ○○-ri, and 11 lots of land, and reported and paid KRW 7,777,177,000,00, and paid KRW 35,300,00 in capital gains tax.

D. After conducting a tax investigation against the plaintiff, the director of the Central Regional Tax Office: (a) determined that the above transfer act constitutes a real estate sale and purchase business of real estate on the ground that the plaintiff conducted a division and transfer on the above ○○○○○, ○○○○, and ○○○ land (hereinafter referred to as "each land of this case") due to an increase in the value of the land, such as survey, punishment, and packing for entry, etc., and thus, the above transfer act constitutes a real estate sale and purchase business; and (b) determined that the income thereby should be assessed on the ground that it constitutes a business income other than a transfer income; and (c) pursuant to Articles 69(5) and 114 of the former Income Tax Act (amended by Act No. 7837 of Dec. 31, 2005; hereinafter the same shall apply), pursuant to Articles 69(5) and 114 of the same Act, the amount of income for the 2004 year belonging to the above real estate sale and purchase business of the plaintiff was 2.

(e)On January 5, 2007, the Defendant, upon revocation of the return and payment of the Plaintiff’s transfer income tax, corrected and notified the Plaintiff of KRW 97,051,940 as global income tax corresponding to the year 2004, KRW 33,283,910 as global income tax belonging to the year 2005, respectively (hereinafter referred to as “instant disposition”).

(g)The plaintiff, on March 27, 2007, filed a request for review with the Commissioner of the National Tax Service on March 27, 2007, however,

29. The decision of dismissal became final and conclusive;

[Ground of recognition] Facts without dispute, entry of Eul 1 to 12 evidence (including a natural disaster) and the purport of the whole pleading

2. Whether or not the dispositions of the instant case are legal. The plaintiff's proposal

(1) The primary assertion: (a) the Plaintiff purchased each of the instant land jointly with the branch office, and entered into a partnership agreement with the branch office office to divide profits therefrom into one, but did not complete the settlement of accounts under the partnership agreement with the branch office office; (b) at the time of entering into the sales contract for each of the instant land, the Plaintiff entered into a special agreement with the buyer on the construction of a road or land category change; and (c) in order to implement such special agreement, additional expenses are anticipated to occur. Therefore, as long as the implementation of the branch office office and the settlement agreement and the special agreement for the buyers is not completed, the Plaintiff’s income cannot be determined due to the transfer of each of the instant land, notwithstanding the fact that the Defendant did not take into account the circumstances.

(2) Preliminary assertion: (a) Even if the Plaintiff did not transfer each of the instant lands to the ○○ line and the Dong business, the brokerage commission received from the Plaintiff is deemed null and void since all of the brokerage commission received from the Plaintiff, even though the Plaintiff did not have registered the establishment of the brokerage office. Therefore, the instant disposition is unlawful in the disposition of this case where the Defendant did not recognize it as the necessary expenses and imposed the global income tax on the remainder after deducting it from the necessary expenses. (b) In addition, if the above brokerage commission was not recognized as the necessary expenses, the Plaintiff filed a global income tax return as a matter of course by generating income, but if the brokerage commission received by the ○○ line is deemed as the necessary expenses, the Plaintiff did not have any income at all accrued to the Plaintiff, and thus, the instant disposition is unlawful.

(b) relevant statutes;

Article 2 (Scope of Tax Liability of the Gu Income Tax Act)

Article 5 (Taxable Period of Gu Income Tax)

(c) Fact of recognition;

(1) The Plaintiff (A) purchased each of the instant land, and on August 7, 2004, with respect to ○○○ Land.

A. On December 22, 2005, each Plaintiff’s sole name with respect to ○○ Ri’s land; on November 10, 2004 or on March 2, 2005, each of the instant land was transferred to ○○○○○, and each of the instant land was completed under the name of each transferee from August 7, 2004 to October 15 of the same year; on ○○ Ri’s land, the registration of ownership transfer is completed between February 28, 2005 to December 27, 2005.

(2) With respect to the acquisition and transfer of ○○ land, around May 2004, a branch line leased KRW 45 million out of the purchase price to the Plaintiff and offered good offices for the purchase and sale of 10 parcels of land thereafter, a branch line received KRW 110 million from the Plaintiff, while a branch line was transferred on September 3, 2004 the ownership of 322-17 and 322-18 of the same title among ○○ land under the name of her husband, Kim head.

(3) With respect to the acquisition and transfer of ○○ land, on April 22, 2005, a branch line leased KRW 25 million to the Plaintiff and offered good offices for the sale and purchase of 6 lots thereafter, a branch line received KRW 17810,000 from the Plaintiff and received KRW 23-14 of 23-14 of 205 of ○○○ land and KRW 23-20 of 20 of 23-2 of 205, respectively.

(4) With respect to the acquisition and transfer of ○○○ land, ○○○○○ Party received KRW 160 million from the Plaintiff in return for mediating the sale and purchase of five parcels of land.

(5) In rendering the instant disposition to the Plaintiff on January 5, 2007, the Defendant calculated the total income amount by deeming the Plaintiff as ○○○ Ri and ○○ Ri land as a sole business operator, and as ○○ Ri land as a gambling business operator and a joint business operator with respect to ○○ Ri land. The Defendant included the actual expenses paid by the Plaintiff to the Plaintiff on each of the instant land and the brokerage fees paid to the branch lines, etc. on each of the instant land as necessary expenses, and deducted it from the total income amount.

(6) However, on February 1, 2007, the Plaintiff filed a lawsuit claiming the purchase price against the branch line, etc. on the ground that the land that the Plaintiff transferred the ownership to the husband of the branch line or the branch line was sold rather than the price for trade mediation. On February 1, 2007, ○○ District Court filed a lawsuit claiming the purchase price against the branch line. On the other hand, the branch line actively responded to the claim, and the Plaintiff filed a complaint with the investigative agency on August 10, 2007.

(7) On May 1, 2008, the Plaintiff was sentenced by the ○○ District Court to a two-year suspended sentence of imprisonment for an attempted fraud on the ground that the Plaintiff filed a false lawsuit as above, and on the other hand, the Plaintiff was sentenced to a two-year suspended sentence of imprisonment for a crime of attempted fraud. In addition, the Plaintiff must settle the accounts in the partnership with ○○○○○ Company as well as in compensation

Although an appeal was filed on January 14, 2009 for the reasons that the ownership of the above land is not transferred, the dismissal of appeal was declared on January 14, 2009. On April 9, 2009, the judgment of conviction became final and conclusive upon the dismissal of appeal was declared on April 9, 2009.

[Ground of recognition] Facts without dispute, Gap 23 to 25 evidence, Eul 1 to 12 evidence (including provisional number), the purport of the whole pleadings

D. Determination

(1) In the case of a master master

(A) First, as to the fact that the Plaintiff and ○○ Line are in the position of partner, each entry in the evidence Nos. 3, 7 through 9, 13, and 17 through 19 alone is insufficient to recognize this. There is no other evidence to acknowledge this. Rather, according to the above facts of recognition, ○○ Line only lent part of the purchase fund to the Plaintiff and acquired the same profits as seen earlier in return for arranging the purchase and sale of the land, and it seems that the Plaintiff was in the position of the Plaintiff and its partner, and therefore, the Plaintiff’s assertion is without merit without any need to examine other issues.

(B) Next, we examine the argument that it cannot be deemed that additional expenses are expected to have been determined as a result of the performance of the following special agreement with regard to the transfer of each land in this case, and our tax law provides that income tax shall be imposed on the income for one year from January 1 to December 31 each year. Article 5 (1) of the former Income Tax Act provides that income tax shall be imposed on the income for one year from January 1 to December 31 of each year. Article 39 of the same Act provides that the total income amount and necessary expenses shall be the year in which the total income amount and the necessary expenses are determined, and Article 48 (11) 1 of the Enforcement Decree of the same Act provides that the settlement date shall be the total income amount of the business income from the sale of real estate in this case, but if the transfer of ownership was made before the settlement of the price, the registration date shall be the date of the registration, and as such, the defendant is not expected to have been paid from the transferee of each land in this case and the additional expenses shall not be calculated as necessary expenses for each of the following year.

(2) For the preliminary note:

(A) The Plaintiff’s assertion that the disposition of this case by the Defendant was unlawful because the Defendant recognized brokerage fees that should not be recognized as necessary expenses and imposed general income tax on the basis of such fees. The Plaintiff’s assertion that it was unlawful is rather attributable to the Plaintiff’s imposition of comprehensive income tax in favor of the Plaintiff. As such, in a subjective litigation brought by a person who is legally infringed by the disposition of the tax authority to remove the infringement, the Plaintiff’s assertion that the disposition of this case itself is unlawful in itself, and as seen earlier, the Defendant issued the disposition of this case with the remainder after deducting all brokerage fees that the Plaintiff paid to the branch office office office office office office office office office office office office office office office office office office office office office office office office office office office office office office office office office office office office office office office office office office office office office office office office office office office office office office office office office office

3. Conclusion

Therefore, the disposition of this case is legal, and there is no reason for the plaintiff's claim, so it is judged the same as the disposition.