Examination Income 2009-0133 (2010.03.09)

Whether the brokerage commission is deducted as necessary expenses

Although it is alleged that one billion won should be deducted as necessary expenses because it is paid with land brokerage commission, it is considered as the same amount as the consulting fee already deducted as necessary expenses, there is no other evidence to acknowledge it otherwise.

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

1. The plaintiff's claim is dismissed.

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

The Defendant’s imposition of global income tax of KRW 6,82,671,593 as of July 1, 2009, and global income tax of KRW 1,091,138,810 as of December 12, 2008 against the Plaintiff shall be revoked.

1. Details of the disposition;

A. The Plaintiff’s acquisition and transfer of real estate

(1) The Plaintiff attended the opening ceremony of ○○○○○ Dong, ○○○○○ Dong, which is promoted by the said company, requested to lend funds to the new apartment construction business, but rejected it.

(2) The Plaintiff, separate from ○○○○○-dong, ○○○-dong, and 61 lots of forest land (hereinafter “instant land”), entered into a sales contract with ○○-si, ○○○-dong, and entered into a contract to transfer the instant land in KRW 40 billion with ○○-dong, ○○-dong, and 61 lots of land (hereinafter “instant land”).

B. Plaintiff’s global income tax return and payment

(1) The Plaintiff received a total of KRW 40 billion on October 24, 2005, total of KRW 17,417,000,000, and KRW 22,583,000,000 on June 11, 2007, from △△△ Co., Ltd and △△△ Co., Ltd. for the instant land.

(2) On May 31, 2008, the Plaintiff paid 12,000,000,000 out of the amount that the Defendant received as above, as interest income accrued in 2007, by paying the comprehensive income tax for 2007.

(3) Meanwhile, during the period from November 15, 2005 to January 10, 2006, the Plaintiff loaned a total of KRW 8,313,892,000 as a fund for purchasing the land of △△-dong members in △△-dong, △△-gu, △△△-dong, which is promoted by the said company, to the said company, and the Plaintiff was issued a certificate of borrowing from the said company that KRW 6 billion is returned to the said company until February 28, 2006, and received KRW 5 billion from the said company on August 18, 2006.

C. Defendant’s taxation disposition

(1) From July 21, 2008 to October 31, 2008, the director of the Central Regional Tax Office confirmed that “the Plaintiff purchased forest land on ○○○○-dong 479 and 61 lots of land (hereinafter “the instant land”) from January 28, 2005 to March 17, 2005,” and that “the Plaintiff transferred the instant land to ○○○-dong 479 and 61 lots of land (hereinafter “the instant land”) on March 17, 2005.” The Plaintiff returned the global income tax for 207, which was reported as interest income, and the instant land included KRW 1,891,470,000,000 for total sales amount for 40 billion to ○○-gu and △△△-si 200,000,0000 won for global income, and the Plaintiff was paid KRW 100,000,000,000.

(2) On December 12, 2008, the Defendant rendered a disposition of imposition of capital gains tax of 11,891,473,850 won for the transfer of the instant land against the Plaintiff on December 12, 2008, and global income tax of 1,091,138,810 won for the global income tax of 2006 based on the said interest income, etc. (hereinafter “instant disposition of imposition of global income tax for 2006”).

(3) The Plaintiff filed an objection, and on June 25, 2009, the director of the Central District Tax Office rendered a decision to revoke the imposition of the transfer income tax for 2005 on the ground that the income from the transfer of the instant land constituted the business income (the objection against the first disposition was dismissed).

(4) The Defendant revoked the full amount of the transfer income tax for the year 2005, and imposed the global income tax for the year 2005 (including KRW 958,697,056, and KRW 1,622,528,816, and KRW 41,245,451,102, including the income from the transfer of the instant land, and the necessary expenses to be deducted were calculated as KRW 26,278,537,8383, including the consulting fees paid to Do-won, Seoul Special Metropolitan City around February 2005, around February 1, 2005) (the total income amount was calculated as KRW 41,245,451,102, including the income from the transfer of the instant land, and KRW 1,00,000,000,000, and KRW 2783,537,883).

(5) Meanwhile, on July 28, 2009, the Defendant paid 4,202,00,000 won as interest income when the Plaintiff paid the global income tax for the year 2007 by making the income accrued from the transfer of the instant land as interest income. As such, the Defendant rendered a decision to refund KRW 501,777,539 for the period from the date of voluntary payment to the date of imposition of global income tax for the year 2005 from the date of imposition of global income tax for the global income tax for the pertinent amount of KRW 4,202,00 to the date of imposition of global income tax for the pertinent amount of KRW 501,77,539 for the period from the date of payment to the date of imposition of global income tax for the year 2005 (hereinafter referred to as “the Defendant paid global income tax for the year 2005 to KRW 7,384,49,120 for the year 205 to the above amount of KRW 501,7,829,205”

[Reasons for Recognition] Facts without dispute, Gap evidence 1-2, Eul evidence 1-3 (including each number), the purport of the whole pleadings

2. The assertion and judgment

A. The plaintiff's assertion

(1) Claim as to the first disposition

From November 15, 2005 to January 10, 2006, the Plaintiff lent a total of KRW 8,313,892,00 to △△S Co., Ltd., and only received KRW 5 billion on August 18, 2006 as principal repayment, and there is no fact that the Plaintiff received interest. Therefore, the first disposition against KRW 2 billion on the premise that it is interest is illegal.

(2) Claim on the second disposition

(A) The Plaintiff’s additional acquisition tax and special rural development tax imposed by the head of ○○○○○○, on the ground that the Plaintiff, as the intermediary fee for the instant land, sold part of the instant land to the headA, and KRW 624,073,40,00 shall be deducted as necessary expenses.

(B) Since the Plaintiff did not properly classify the items of taxation under the Income Tax Act and filed a false return on and paid tax by mistake by deeming them as interest income, it is unlawful to impose penalty tax amounting to KRW 958,697,056 and penalty tax amounting to KRW 1,120,751,280.

B. Determination

(1) Judgment on the argument about the first disposition

In light of the following circumstances, Gap evidence Nos. 5, Eul evidence Nos. 5-1 and 2, and the fact-finding results of this court's fact-finding with △△△△ corporation, the plaintiff, on Nov. 15, 2005, lent 4 billion won to △△△△△△ corporation as the first beneficiary, and the △△△△ trust as the plaintiff, and the △△△△△△△ 236-1 land and its ground building issued to △△△△△△△△△△△ corporation as the principal and 40 billion interest amount were paid to 6 billion won until February 28, 2006, and the △△△△△ corporation as the principal and 5 billion interest amount were paid to △△△△ corporation as the principal and 40 billion interest amount were paid to △△△ corporation as the principal and 5 billion interest amount were stated to the effect that the plaintiff was paid to △△△△ corporation as the principal and 5 billion interest amount.

Therefore, the prior plaintiff's assertion on a different premise is without merit.

(2) Judgment on the argument about the second disposition

① First, according to the statement of evidence No. 11 as to the assertion of necessary expense deduction, even though the Plaintiff was found to have spent KRW 1 billion as the intermediary fee of the instant land on or around February 2005, the above KRW 1 billion is merely the same amount as the consulting fee of KRW 1 billion paid by the Defendant to △△△, a corporation which already deducted the necessary expenses, and there is no other evidence to acknowledge it (the foregoing fact is deemed to have paid KRW 1 billion to △, etc. around July 2005).

② In 209, the Plaintiff received a total of KRW 624,073,40 from the head of ○○○○○○○ in 2009 to the acquisition tax and special rural development tax of the instant land, and paid the same. However, in light of the fact that Article 27(2) of the Income Tax Act provides that the expenses corresponding to the total amount of income prior to the relevant taxable period, which were determined in the said taxable period, are not appropriated as necessary expenses before the relevant taxable period, shall be deemed as necessary expenses for the relevant taxable period. Thus, the Plaintiff’s above assertion is without merit.

(3) Next, as to whether the imposition of additional tax is lawful, it cannot be said that there is a justifiable reason that the Plaintiff did not properly classify the items of taxation under the Income Tax Act, and thus, it cannot be said that there is a justifiable reason for the taxpayer to have mistakenly reported and paid the additional tax by deeming it an interest income. Therefore

3. Conclusion

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