Seoul High Court 2013Nu125 (Law No. 19, 2013)

Cho High Court Decision 201Do5014 ( October 14, 2012)

The user fee paid to the user of the access road after acquisition of land shall not be deducted as necessary expenses.

The use agreement of the access road site is not aimed at extending the service life of the land itself, but merely a price used for access to the land, and merely does not constitute capital expenditure, but does not constitute expenses paid for convenient use of the land, or expenses equivalent thereto, and thus cannot be deducted from necessary expenses.

2013Du1416 Revocation of disposition of revocation of capital gains tax rectification notice

Uniform AA

Head of Geumcheon Tax Office

Seoul High Court Decision 2013Nu125 Decided June 19, 2013

November 14, 2013

The appeal is dismissed.

The costs of appeal are assessed against the Plaintiff.

The grounds of appeal are examined.

1. Article 97 (1) 2 of the Income Tax Act provides that "capital expenditure, etc. prescribed by Presidential Decree" as one of the necessary expenses to be deducted from the transfer value when calculating gains from transfer of a resident; Article 163 (3) 3 of the Enforcement Decree of the Income Tax Act provides that "the expenses to be paid for the alteration, improvement or convenience of use of transferred assets" and Article 163 (3) 4 of the Enforcement Decree of the Income Tax Act provides "the expenses corresponding to subparagraph 3 of the same Article, prescribed by the Ordinance of the Ministry of Strategy and Finance" as capital expenditure, etc.; Article 79 (1) 3 of the former Enforcement Rule of the Income Tax Act (amended by Ordinance of the Ministry of Strategy and Finance No. 195 of March 28, 201) upon delegation under subparagraph 4 of the same Article provides that "the expenses to be paid when a road is constructed on the relevant land for the convenience of land use," and Article 79 (1) 6 of the same Act provides

2. A. In full view of the adopted evidence, the lower court acknowledged the following facts: (a) the Plaintiff acquired the instant land to build a new factory on January 3, 2007, and paid OOOO to the non-party clans in order to use the land adjacent to the instant land (hereinafter “the access road site”) for the purpose of entering the factory on May 20, 207; (ii) the Plaintiff filed a lawsuit against the non-party clans seeking the return of usage fees from the non-party clans around 2010 when the factory cannot be established on the instant land due to the issue of permission for mountainous district conversion, etc.

Furthermore, the lower court determined that the instant disposition imposing transfer income tax on the Plaintiff is lawful on the ground that the use agreement of the access road site of this case does not constitute “expenses or expenses equivalent thereto disbursed for convenience of the use of transferred assets” under Article 163(3)3 Item 4 Item (b) of the Enforcement Decree of the Income Tax Act, on the ground that it does not constitute “expenses or expenses equivalent thereto disbursed for convenience of the use of transferred assets” under Article 163(3) Item 3 Item (d) of the Enforcement Decree of the Income Tax Act, on the ground that the Plaintiff’s use right of the access road site of this case cannot be deemed as either expenses for the construction of roads or expenses similar thereto for the said land, and that the Plaintiff’s use right of the access road site of this case is an obligatory right, not to be transferred to the buyer along with the instant land in the public sale procedure.

B. Examining the relevant provisions, legal principles, and records, the judgment of the court below is just, and there is no error in the misapprehension of legal principles as to necessary expenses for transferred assets under Article 163 (3) 3 and 4 of the Enforcement Decree of the Income Tax Act, as alleged in the grounds of appeal.

3. Therefore, the appeal is 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 on the bench.