Whether it falls under real estate trading business

A real estate sales businessman shall be deemed to be a real estate sales businessman if he/she has registered a business with a construction business and real estate sales business and is currently registered as a real estate sales business, and the status of sales and possession after the new construction of a factory are objectively considered.

Article 19 of the Income Tax Act / [Business Income]

Article 34 (Scope of Real Estate Sale Business)

1. All of the plaintiff's claims are dismissed.

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

The Defendant’s imposition of global income tax of KRW 101,118,240 for the Plaintiff on April 1, 2006, global income tax of KRW 132,664,90 for the year 2001, and global income tax of KRW 314,843,540 for the year 2002 is revoked.

1. Details of the disposition;

A. On May 28, 1982, the Plaintiff succeeded to the land of ○○○-182, ○○○○-182, Ri○○○-258, Ri○○○-259, Ri○○○○-262, and Ri○○○-364 (hereinafter referred to as “○○○○ and Myeon○-364”) and acquired the land of ○○○-195 on August 7, 1997 by auction, and thereafter, acquired the land of 14,290 square meters in total (hereinafter referred to as “instant land”) from 200 to 202, by applying the standard market price of the instant land to the Defendant (hereinafter referred to as “the instant land”).

B. However, the Defendant: (a) conducted a tax investigation on the Plaintiff; (b) deemed the income from the transfer of this case as the business income from real estate sales; (c) deemed the real value confirmed by the real estate sales contract, etc. for the total amount of income; and (d) calculated the Plaintiff’s business income by applying the sum of the standard market price as of January 1, 1985, or the auction price as of August 7, 1997, as of August 7, 1997, as to the acquisition value of the building of this case; and (d) the cost of the construction account stated in the register of real estate rental business operated by the Plaintiff, as to the acquisition value of the building of this case, by applying the sum of the acquisition tax, registration tax, and other incidental expenses; and (e) notified the Plaintiff of the global income tax for the year 200, as of April 1, 206, the global income tax for the year 200, and the global income tax for the year 2001.

C. On June 27, 2007, the National Tax Tribunal decided to include 122,480,000 won for the land creation of the instant land in necessary expenses. According to the purport of the decision of the National Tax Tribunal, the Defendant issued a decision to correct the total income tax of 200 on July 9, 2007 as KRW 101,118,240, the total income tax of 2001 as KRW 132,64,90, the total income tax of 2001 as KRW 132,664,90, the total income tax of 202 as KRW 314,843,540, respectively (hereinafter referred to as the “disposition”).

[Reasons for Recognition] Facts without dispute, Gap evidence 1-1 through 3, Gap evidence 2, 3, Gap evidence 8-1 through 4, Gap evidence 9-1, 2, Gap evidence 10-1, 2, Gap evidence 11-1 through 3, Gap evidence 12-1 through 3, Gap evidence 23-1 through 3, Eul evidence 23-1 through 3, Eul evidence 1-23, and the whole arguments, and arguments.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) The allegation that income from the transfer of this case is not business income

Since the Plaintiff filled the instant land for the purpose of continuing and repeated real estate sales business, and did not newly construct and transfer the instant building, the Plaintiff cannot be deemed as a real estate sales businessman. Therefore, income from the transfer of this case cannot be deemed as business income from real estate sales business, and thus, the disposition of this case against which the Defendant imposed the comprehensive income tax on the Plaintiff by deeming the Plaintiff as a real

(2) Claim that there was an error in calculating the business income

Even if the plaintiff is a real estate broker, the disposition of this case is unlawful for the reason that the defendant calculated the plaintiff's business income.

(A) First, in calculating the Plaintiff’s business income due to the transfer of this case, there is no relevant documentary evidence such as the land creation cost for the land of this case (hereinafter “land creation cost”), which is an important expense for the transfer of this case, and the material cost and personnel expenses for the building of this case. Therefore, in such a case, since there is no necessary account book or documentary evidence in calculating the Plaintiff’s business income or there is insufficient material part in calculating the Plaintiff’s business income, the Defendant must impose estimated taxation in calculating the business income for the transfer

(B) In around 1995, the Plaintiff filed a global income tax return by estimating necessary expenses and amount of income when the Plaintiff filled up and sold the waste salt farm land as factory site and newly constructed and sold the factory building. However, the Defendant did not impose an estimated tax on the income amount related to the above land at the time of making an estimated decision on the income amount related to the above land, the Defendant’s failure to impose an estimated tax on the similar case goes against the principle of tax equity and the principle of trust protection.

(C) Even if the Defendant’s household income tax is based on a field investigation rather than an estimated tax, the necessary expenses should be deducted based on the value of the land at the time when the Plaintiff applied for a building permit for the instant building, which is the time at which the Plaintiff can be deemed to have commenced real estate sales business.

(D) In addition, in the case of the new construction and transfer of the instant land and building, the Defendant arbitrarily estimated and calculated the cost of developing the instant land under a state without accurate basis, such as books and evidentiary data, regarding the cost of developing the land, but the Plaintiff paid at least 60,000 won per actual deliberation. As such, the instant disposition is unlawful even in this regard.

(b) Related statutes;

Omission

(c) Fact of recognition;

(1) On May 28, 1982, the Plaintiff and the Plaintiff were jointly inherited the land of 129,363 square meters prior to the division.

(2) The land prior to the subdivision was the land where public waters were reclaimed on October 17, 1960. The land category of the land was the salt farm at the time of the above reclamation, and was changed to the miscellaneous land on November 23, 1987.

(3) Each land of ○○○○-182 and ○○-195 was divided from each land of ○○-70 on April 12, 198. The land of ○○-258 was successively divided from ○○-183 land of 1996, Feb. 13, 1996; the land of ○○-259 was successively divided from ○○-186 land of ○○-186 each on the same day; the land of ○○-262 was divided from ○○-262 divided from ○○-36, Nov. 29, 196; and the land of ○○-262 divided from ○○-36, Nov. 29, 1996 to ○○-25, 2005.

(4) The land category of ○○○○○-262 was changed from the land to the road on February 5, 1995 to the land category of ○○○○-258 land on April 20, 200, the land category of ○○○-195 land on April 20, 200 to the land category of ○○○○-259 land on February 1, 2001. The land category of ○○○-182 land was changed to the land site on January 16, 2002. The land category of ○○○-182 land was changed to the road on June 5, 1995. Accordingly, all of the above land category was changed to the land site or road on April 1, 200.

(5) The Plaintiff registered its business with construction or real estate sales business as follows.

Business Number

Location

Type/Types of Business

Date of commencement;

Ender of Business

○○○ ○○-186

Real Estate/stores

October 25, 93

Continued

○○○ ○○-187

Construction/General Building Corporation

October 28, 200

November 4, 93

○○○ ○○-219

Real Estate / Real Estate Sale

July 8, 94

December 31, 97

○○○ ○○-245

Real Estate / Real Estate Sale

april 3, 96

December 31, 97

(6) The details of global income tax reported to the Defendant between 1993 and 1997 are as follows.

Classification of Income

Business Number

Type of Business

Total revenue amount

Necessary expenses

Amount of income;

Tax amount payable

1997

Lease of real estate

Real Estate/Lease

78,000

40,184

37,815

41,501

Business Income:

Real Estate/Building Construction Sales

430,000

371,222

58,777

Business Income:

Real Estate / Real Estate Sale

102,000

64,260

37,740

196

Lease of real estate

Real Estate/Lease

70,174

36,987

3,727

34,106

Business Income:

Real Estate/Building Construction Sales

230,000

193,491

36,509

Business Income:

Real Estate/Building Construction Sales

121,500

76,545

44,955

195

Lease of real estate

Real Estate/Lease

70,174

36,987

3,727

80,216

Business Income:

Real Estate/Building Construction Sales

430,000

371,222

58,777

1994

Lease of real estate

Real Estate/Lease

70,174

36,987

3,727

6,205

1993

Lease of real estate

Real Estate/Lease

7,001

1,793

5,208

11,886

Business Income:

Construction/General Building Corporation

42,000

400,894

41,106

(7) During the period from 1993 to 2002, the status of the Plaintiff newly constructed and sold a factory including the transfer of the instant land and the building in the vicinity of the instant land is as follows.

No.

Location

Area of a square meter;

Date of acquisition

Transfer Date

Jinay

1

○○○ ○○-187

983.40

October 15, 1993

November 3, 1993

2

○○○ ○○-217

1.248.00

February 18, 1995

April 4, 1995

3

○○○ ○○-219

490.00

may 2, 1996

February 13, 1997

○○○ ○○-219

70.00

June 18, 1996

4

○○○ ○○-183

490.00

May 2, 1996

September 15, 1998

○○○ ○○-183

70.00

June 18, 1996

5

○○○ ○○-186

490.00

may 2, 1996

Lease

○○○ ○○-186

70.00

June 18, 1996

6

○○○ ○○-262

560.00

February 23, 2000

March 2, 2000

7

○○○ ○○-258

560.00

May 8, 2000

may 23, 200

8

○○○ ○○-195

514.80

March 25, 2002

April 26, 2002

9

○○○ ○○-259

658.00

March 25, 2002

April 6, 2002

○○○ ○○-259

490.00

March 25, 2002

(8) The Plaintiff included real estate rental in the construction cost of the instant building in the book of the said workplace, and entered in the construction cost of the instant building in the book of the said workplace. The Defendant calculated the tax base by deeming the sum of the acquisition tax, registration tax and other incidental expenses stated in the construction cost account of the said book as the acquisition value of the instant building.

(9) The soil filled up on the instant land was transported from a place less than 6 km away from the location of the instant land to the ground cut of mountain, and the above soil was transported from a place less than 6 km away from that of the instant land.

(10) As a result of a survey conducted by the Defendant on the height of earth and sand buried in the instant land, the height of earth and sand in the instant land is about 1.5 meters.

(11) The maximum load per 15 tons truck is 10 square meters, and the cost of soil transport per 15 tons truck from 1993 to 199 is 30,000 to 40,000 won.

(12) The Defendant determined the load per 15 tons of truck per 15 tons of truck by taking into account that the volume decreases by horizontal work, such as floor stop, and calculated the cost of creating the instant land by setting the cost of transporting soil and sand per 15 tons of truck as a maximum value of KRW 40,000, (40,000 for each 15 tons of truck, and calculated the cost of creating the instant land [ [(1.5 square meters) of reclaimed area (1.5 square meters), ±7 square meters (15 tons of truck) X40,00 won per 15 tons of truck)]. The result is as follows.

Year

Location of factory reclamation

Area of factory site

(Size)

Saturdays required

(15 ton truck number)

Expenses for land creation

(unit:,000 won)

202

○○○○-259, ○○-182

6,600

1,414

56,560

202

○○○○-195, ○○-182

1,675

359

11,360

201

○○○○-258, ○○-182

2,543

545

21,800

200

○○○○-262, ○○-364, ○○-182

3,472

744

29,760

Total

14,290

3,062

122,480

[Ground of recognition] Gap evidence 4, 5, Gap evidence 6-1 through 6, Gap evidence 7, Gap evidence 17-1 through 3, Eul evidence 4 and 5, Gap evidence 16-1 through 3, Gap evidence 16-1 to 3, witness Lee's testimony, and the purport of the whole pleadings

D. Determination

(1) Whether income from the transfer of this case is business income

Whether the income from the transfer of real estate is business income or capital gains under the Income Tax Act shall be determined according to the ordinary social norms, considering the transferor’s acquisition and holding status of the real estate, whether the transfer is made, whether the transfer is made for profit, the size and frequency of the transfer, the mode, the other party, etc., and the continuity and repetition of the degree to be seen as business activity. The determination shall take into account not only the transfer of the real estate concerned but also all the circumstances before and after the transfer of the real estate held by the transferor throughout the entire real estate held by the transferor (see, e.g., Supreme Court Decision 9Du5412, Apr. 24, 2001). Article 1(2) of the Enforcement Rule of the Value-Added Tax Act provides that the sale and purchase or brokerage of real estate shall be deemed to be a real estate sales business if the real estate is acquired and sold more than once for one taxable period for business purpose, but it shall not be deemed to be a real estate sales business, and even if the real estate transaction was conducted repeatedly under the premise of its business objective.

이 사건에 돌아와 보건대, 앞에서 살핀 바와 같이, 원고는 1993년부터 1997년까지 건설업 및 부동산매매업으로 사업자등록을 한 적이 있고 현재도 부동산임대업으로 사업자등록을 하고 있는 점, 원고는 이 사건 토지 등에 9개동의 공장을 신축하여 8개동은 매매 후 사업소득으로 종합소득세를 신고ㆍ납부하고 나머지 1개동은 부동산임대업으로 사업자등록 후 현재까지 임대 중에 있는 점, 특히 이 사건 양도에 관하여 보면 2000년부터 2002년까지 4개동의 공장을 신축하여 매매하면서, 3개동의 공장은 건물완공 후 불과 3개월 내에 바로 매매한 점 등에 비추어 보면, 원고의 이 사건 양도는 객관적으로 보아 계속성ㆍ반복성이 인정되고, 원고는 부동산매매업자에 해당한다 할 것이므로, 원고의 이 부분 주장은 이유 없다(또한 원고는 이 사건 양도와 관련하여 원고가 양도소득세 신고를 하면서 피고 스스로 원고에게 양도소득세 예정신고를 하도록 양도소득세액까지 계산하여 안내하였고, 양도세액의 신고 및 납부로 납세의무가 종결된다고 확언까지 하였으므로 이 사건 처분은 부당하다는 취지로 주장하므로 살피건대, 갑 제9호증의 1, 2, 갑 제10호증의 1, 2, 갑 제11호증의 1 내지 3, 갑 제12호증의 1 내지 3의 각 기재에 의하면 피고가 원고에게 부동산양도신고에 따른 안내서를 발송하였고, 원고는 피고에게 이 사건 양도로 인한 소득을 사업소득이 아닌 양도소득으로 예정신고 및 납부하였으며, 피고는 원고에게 위 신고사실을 확인해 준 사실은 인정할 수 있으나, 위와 같은 안내는 납세자의 신고를 유도할 목적으로 발송하는 것일 뿐이고, 원고는 위 안내문을 수령한 후 부동산의 양도가 부동산매매업으로 사업소득에 해당하는지 아니면 양도소득세에 해당하는지 여부를 검토하여 신고를 할 의무가 있으며, 피고의 위와 같은 신고에 대한 확인은 원고가 부동산 양도내용을 신고하였다는 사실을 확인해 주는 것에 불괗아ㅕ, 피고의 위와 같은 안내 및 확인행위를 이 사건 소득을 사업소득이 아닌 양도소득으로 본다는 피고의 공적인 견해표명으로 볼 수도 없으므로, 원고의 위 주장은 이유 없다).

(2) As to the allegation that the method of calculating the business income is unlawful

(A) First, the Plaintiff asserts that the transfer of this case did not have account books or documentary evidence concerning the land creation cost, material cost, personnel cost, etc., which is an important expense for the land of this case, and this constitutes a case where the Defendant did not have an important part in calculating the tax base of the disposition of this case, and thus, the Defendant should make an estimation decision on the business income

The tax base and tax amount of global income tax are, in principle, determined based on the actual amount revealed by the method of the on-site investigation. Inasmuch as there is no taxpayer’s account books and documentary evidence, which serve as the basis of the determination of tax base and tax amount, or where it is difficult to use them by the method of the base taxation because of lack of necessary documents or falsity, the remainder of the tax base can be calculated based on the clear and reasonable basis, excluding all necessary documents, if it can be determined by the method of the on-site investigation. Only if it is impossible to conduct an on-site investigation by means of estimation, the tax base and tax amount can be assessed by the method of the on-site investigation, and it cannot be deemed that the taxation disposition by the on-site investigation is more unfavorable than that by the method of the on-site investigation or that the taxpayer wants to investigate and determine income by the method of estimation by the method of the on-site investigation (see, e.g., Supreme Court Decisions 95Nu241, Aug. 22, 1995; 98Nu609, etc.).

In the instant case, there is no dispute between the parties as to the fact that the Plaintiff did not have books or documentary evidence on the transfer of the instant land. As seen earlier, the Defendant, based on the standard market price or the sales price at the time of auction as of January 1, 1985, with respect to the acquisition value of the instant land by a field investigation, and with respect to the land creation cost, the Defendant, based on the 15 tons truck per 15 tons truck and the 40,000 won per 15 tons truck and the expenses for soil transport per 15 tons per hour at the time, shall be calculated based on the estimated reclamation cost-type [1.5 square meters per 15 tons] ± seven square meters (15 tons truck) (the 15 tons truck). The Plaintiff’s assertion that the Plaintiff’s land construction cost and construction cost of the instant building, including the acquisition value of the instant land, cannot be acknowledged as having been included in the acquisition value of the instant land in the newly constructed real estate account, based on the following facts:

(B) Meanwhile, the Plaintiff asserted that the method by which the Defendant calculated the land development cost of the instant land is not correct, and that the land development cost of the instant case is at least KRW 60,00 per square meter, and that the acquisition price of the instant building did not include personnel expenses and material expenses. However, it is insufficient to acknowledge the entries of the evidence Nos. 13, 14, 15-1, 15-2, 18-1, 2, 19, 20, 19, 16-1 through 3, and 16-3, and the testimony of the evidence No. 16-1 to 3, and the testimony of this case is insufficient. As seen earlier, there is no illegality in calculating the cost of the instant land development because the Defendant measured the height of the instant land filled and investigated soil quality, and thus, the Plaintiff’s assertion is without merit.

(C) In addition, with respect to the land acquired by inheritance among the land in this case, the plaintiff did not have an intention to sell real estate at the time of inheritance, and thus, the appraisal of the land should be deducted necessary expenses on the basis of the land value at the time of applying for a building permit on the relevant land building. According to relevant Acts and subordinate statutes, if the acquisition value of the property is deducted from the business income of real estate, etc. as necessary expenses, the market value is unclear like the land in this case when the acquisition value of the property is deducted from the necessary expenses. If there is no appraised value by the appraisal corporation, the land value assessed on the basis of the officially assessed individual land price at the time of acquisition pursuant to Article 61 (1) 1 of the Inheritance Tax and Gift Tax Act (amended by Act No. 735 of Jan. 14, 2005) shall be deducted from the necessary expenses (Provided, That the acquisition on or before December 31, 1984 pursuant to Article 8 of the Addenda of the Income Tax Act shall be deemed to have been acquired on the basis of independent opinion of the plaintiff.

(D) Lastly, the Plaintiff asserted that the Defendant did not impose additional tax in this case despite the Plaintiff’s estimation of income amount when ○○○○-217 and ○○○-182 newly constructed and sold a factory building, it goes against the Plaintiff’s taxation-oriented principle and trust protection principle. Thus, according to each of the evidence Nos. 25-1 through 22, No. 26, and No. 27, the Plaintiff’s estimation of income amount was contrary to the Plaintiff’s assessment of global income in this case, on the land of ○○○○○-217, ○○-182, which was newly constructed and transferred the factory building on the land of 195, and because it was difficult for the Defendant to calculate the cost of developing the land, it cannot be concluded that the Plaintiff’s return of income amount was in violation of the Plaintiff’s global income tax return and the Plaintiff’s return of tax return cannot be readily concluded as the Plaintiff’s tax return and the Plaintiff’s tax return of global income in this case.

(E) Therefore, the Plaintiff’s assertion that the method of calculating the business income is unlawful is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is all dismissed as it is without merit, and it is so decided as per Disposition.