Whether capital gains tax, etc. borne by a person who acquired and sold an unregistered real estate on behalf of the transferor constitutes necessary expenses under Article 45(1)1 of the Income Tax Act and Article 94(1) of the Enforcement Decree of the same Act (negative)

Even if a transferee of real estate assumed capital gains tax on behalf of the transferor in order to make a pre-sale of unregistered real estate, it is not the necessary expenses under Article 45 (1) 1 of the Income Tax Act and Article 94 (1) of the Enforcement Decree of the same Act, since the transferor bears his own burden on behalf of the transferor in return for concealing the fact of resale by selling the unregistered property

Article 45 (1) of the Income Tax Act, Article 94 (1) of the Enforcement Decree of the same Act

[Plaintiff-Appellant-Appellee] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jae-soo et al., Counsel for plaintiff-appellant-appellant-appellee)

Plaintiff 1 and 7 others, Counsel for the plaintiff-appellant

Head of Seogu Tax Office and two others

Daegu High Court Decision 89Gu1033 delivered on January 9, 1991

All appeals are dismissed.

The costs of appeal shall be assessed against the plaintiff, etc.

We examine the grounds of appeal.

According to the reasoning of the judgment below, the court below rejected the plaintiffs' assertion that the plaintiffs acquired 1,791 square meters from the non-party 1 and 2 on January 16, 1988 to the non-party 5, etc. from the non-party 3 to the non-party 1,768,650,000 won from the non-party 4 and the non-party 1,26,457 et al. from the non-party 1 to the non-party 3, and divided them into 38,00,000 won from the non-party 1 and the non-party 2 to July 24, 198, the non-party 3, the ownership of the non-party 3, the transferor, in lieu of the non-party 4 and the non-party 1, the non-party 4, the non-party 8,508,000 won should not be included in the necessary expenses to calculate the transfer gains tax under the non-party 3's name.

According to the records, the fact-finding by the court below is just and the transferee of assets bears the transfer income tax on his own in lieu of the transferor in return for covering the fact of resale by selling the assets unregistered, so it does not constitute necessary expenses under Article 45 (1) 1 of the Income Tax Act and Article 94 (1) of the Enforcement Decree of the same Act. Therefore, the judgment of the court below is just and there is no violation of rules of evidence or misapprehension of the legal principles, such as the theory of lawsuit. There is no ground for appeal.

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Jong-soo (Presiding Justice)