(영문) 서울행정법원 2017. 02. 17. 선고 2015구단51722 판결

1. The Defendant’s refusal to rectify the transfer income tax for the year 201, which it had against the Plaintiff X. 201, shall be revoked within the limit of 000 won.

2. The plaintiff's remaining claims are dismissed.

3. 70% of the costs of lawsuit shall be borne by the Plaintiff, and the remainder shall be borne by the Defendant.

Cheong-gu Office

The Defendant’s refusal to rectify the transfer income tax corresponding to X. X. 201 for the Plaintiff shall be revoked.

Reasons

1. Details of the disposition;

A. The plaintiff, Kim JS, KimYC, ParkYC, GYC, SPG, OSS entered into a Dong business agreement to operate a 'BB cafeteria', and formed a Dong business partnership (hereinafter "the cooperative of this case") with each other by making an investment. On the X-gu Seoul OOOO-dong 000-0 large scale 000 square meters (hereinafter "the site of this case"). On the X-2 of X on 2002, the plaintiff acquired the land of this case (hereinafter "the building of this case"), and jointly acquired the land of this case on the X-2 of October 2002, X, and the plaintiff acquired the land of this case (hereinafter "the building of this case"). At the time of the plaintiff's share of 10%, KimS-J, 00%, Kim HH, 00%, 00, 000, 000,000,000GPP.

B. Five persons, such as KimYC, transferred 0% out of the total share of the instant real estate X. X. 2004 to the Plaintiff, 00% to Kim JS, 00% to the Plaintiff, and 00% to KimS. As a result, the Plaintiff became 00%, Kim JS 00%, and KimSH 00%.

C. On January 201, 201, the Plaintiff, Kim JS, and KimSH (hereinafter referred to as the “Plaintiff, etc.”) transferred the instant land and the instant building (hereinafter referred to as the “instant real estate by combining them”) to KRW 0 million. On January 201, the Plaintiff scheduled the transfer price of the Plaintiff’s share among the instant real estate to X as KRW 0 million and KRW 000,000,000, out of which the acquisition price was 00,000, and paid KRW 00,000 among them.

D. On October 2013, the Plaintiff erroneously applied the special long-term holding deduction for the instant real estate to the Defendant, and filed a claim for correction to the effect that, since the acquisition value of the Plaintiff’s share among the instant real estate was KRW 000 by omitting some necessary expenses, the Plaintiff corrected the transfer income tax to be paid to the Plaintiff at KRW 00 (reduction of KRW 00).

E. As a result of reviewing the claim for correction, the Defendant recognized errors in the application of special deduction for long-term possession and some necessary expenses and rendered a decision of correction that reduces KRW 00 of the transfer income tax reported by the Plaintiff against the Plaintiff on X. X. (hereinafter referred to as “decision of rejection”), namely, the part that remains without reduction or correction (i.e., KRW 00 - KRW 00 for convenience).

F. Accordingly, the Plaintiff appealed to the Tax Tribunal but was dismissed.

[Ground of recognition] Facts without dispute, Gap 2, 14, 16 evidence, Eul 1, 6, 7 evidence (including paper numbers) and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

In addition to those recognized as necessary expenses at the time of the instant refusal disposition, the following necessary expenses should be recognized. Therefore, the instant refusal disposition on different premise is unlawful.

1) Construction costs of the instant building

Of the construction cost of the building of this case, the defendant recognized only some of the construction cost of the building Nos. 1 and 10 of the [Attachment 1] of the attached Table 1], and did not recognize the remainder construction cost of the construction cost of the building of this case (=00 won-000 won) + [Attachment 1] of the attached Table 1] + [Attachment 2] of the attached Table 2 (=00 won-00 won-00 won-00 won). Of the above construction cost, the part equivalent to the portion of the plaintiff's share among the above construction cost should

[Attachment 1] Major Construction Costs

[Attachment 2] Incidental Construction Costs

2) The portion of acceptance of obligations to thisGJ

The Plaintiff et al. agreed that three members of X. X. X. and five members of KimYC, etc. will take over their shares, and they will take over their obligations owed by five members of KimYC, etc. (hereinafter “instant agreement”). At the time of the instant agreement, the Defendant shall recognize the part corresponding to the Plaintiff’s shares as necessary expenses only if three members of the Plaintiff et al. take over the total debts of five members of KimYC, etc. (in this case, the part corresponding to the Plaintiff’s shares x X ratio (the total shares acquired by three members of the Plaintiff et al.) x x X ratio (the total shares acquired by three members of the Plaintiff et al.) / X ratio (the total shares acquired by three members of the Plaintiff et al.) and not recognize the acquisition of the debts owed to this GJ. Since the portion borne by five members of KimYC, etc. out of KRW 0 million, the part corresponding to the Plaintiff’s shares should be recognized as necessary expenses.

3) The part concerning the obligation owed to ParkMC, expenses for withdrawal of auction, credit payment, KimSH, Kim JS, and the part concerning the obligation owed to the Plaintiff

Three members of the Plaintiff, etc., at the time of the instant agreement, shall bear 000 won (=00 billion won +000 won), 5 members of KimYC, etc. from among the expenses for withdrawal of auction assumed by KimYC, 000 won (x%) and 000 won on credit (=300,000 won for Co., Ltd. + DD00 + 000 won for Co., Ltd + 000 + 000 + 000 won for EE + 000 won + 000 won for EE + 000 won for HH outside of GG + KRW 00,000), 5 members of KimYC, etc. from among the debt owed to KimY, 00,000 won for the Plaintiff, 00,000 won for KimY, 50 billion won for the Plaintiff’s debt owed to KimY, and 5 million won for the Plaintiff’s total expenses ( XX).

4) Costs of waterproof construction of the instant building

The part of the Plaintiff’s share out of KRW 000,00,000 paid to Co., Ltd. III as construction cost, should be recognized as necessary expenses, when repair works, such as AAAV vagabonds 2 and 3 floors and rooftop waterproof works, irrigation works, interior removal of underground floors, floor and walls works, and interior protection prevention facility works, have occurred due to the occurrence of water erosion, etc. on the instant building.

(v) costs of AArastop 2, 3rd floor repair works.

Three plaintiffs et al. shall undertake the improvement works of X. X. X. AAlele 2 and 3 floors on 2004, and the part equivalent to the portion of the plaintiff's share out of the cost of construction paid to JJ as the cost of construction shall be recognized as necessary expenses.

(vi) costs of repair works for BB cafeterias;

Three plaintiffs, etc. shall be deemed necessary expenses for the portion of the plaintiff's share of the construction cost paid to KK as the construction cost while the interior works are performed to remodel the BB cafeteria in the form of an underground floor market around X. 2006 to a high-class restaurant.

B. Determination

1) Article 97(1)2 of the former Income Tax Act (amended by Act No. 12169, Jan. 1, 2014) provides that "acquisition value, capital expenditure, etc. prescribed by Presidential Decree as necessary expenses to be deducted from the transfer value," and Articles 163(3)1 and 3 and 67(2) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 22811, Mar. 11, 201) provide that "expenses disbursed for the change, improvement or convenience of use of transferred assets, or repair expenses disbursed to extend the service life of depreciable assets owned by a business operator or to increase the real value of the relevant assets, etc." In conclusion, in order to constitute capital expenditure, etc. as necessary expenses, the relevant expenses should be paid for the purpose of extending the service life of assets or for the alteration, improvement or convenience of use in order to increase the real value of the relevant assets.

On the other hand, the burden of proof on the tax base, which is the basis of taxation, shall be imposed on the tax authority, and the tax base shall be deducted from necessary expenses, so the tax authority shall, in principle, bear the burden of proof on the revenue and necessary expenses. However, since most of the facts causing necessary expenses are in the sphere under the control of the taxpayer, and it is difficult for the tax authority to prove such facts. Thus, if it is reasonable to prove the taxpayer in consideration of difficulty in proof or equity between the parties, it accords with the concept of fairness to recognize the necessity of proof on the taxpayer (see, e.g., Supreme Court Decision 2006Du16137, Oct. 26, 2007).

2) We examine the construction cost of the instant building.

A) We examine the principal construction cost in [Attachment 1].

Considering that Gap evidence 13 1 to 4, Gap evidence 11, witness R's testimony in addition to the overall arguments, five members, such as the plaintiff, etc., 3, X on the ground of this case, X on February 1, 2002, Kim YC, which executed the business of the association of this case, ordered construction work to be executed at KRW 00,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,000,000,000,000,000,000,000,00,000,00,000,00,00,00

B) [Attachment 2] We examine the sequence 1, 3, 4, 7, 8, 11 through 16, and 18 of the incidental construction costs.

갑 5호증의 1, 3, 4, 7, 8, 11 내지 16, 18, 갑 10호증의 1, 2의 각 기재, 갑 11호증의 영상에 변론 전체의 취지를 더하여 보면, 이 사건 조합의 업무를 집행하는 김YC은 2002. X.경 주식회사 SSS와 설계 및 감리업무용역계약을 00만 원에 체결하였고 주식회사 SSS는 이 사건 건물의 설계와 감리를 맡아 완료한 점, 이 사건 조합의 업무를 집행하는 김YC은, PPP 대표 김JH와 사이에 외부도장공사를 공사대금 00만 원에 도급 주는 내용의 공사도급계약서를, 2002. X. X. DD주식회사와 사이에 배관 및 설비공사를 공사대금 00만 원에 도급 주는 내용의 공사도급계약서를, 2002. X. X. UUU대표 박CH과 사이에 UUU발포공사를 공사대금 00만 원에 도급 주는 내용의 공사도급계약서를, 2002. X. X. TTT 대표 양HP과 사이에 유리 등 제작공사를 공사대금 00만 원에 도급 주는 내용의 공사도급계약서를, 2002. X. X.경 RRR개발 대표 배SB과 사이에 지하수개발공사를 공사대금 0만 원에 도급 주는 내용의 공사도급계약서를, 2002. X. X. WWW 대표 홍SH과 사이에 아스콘공사 등을 공사대금 00만 원에 도급주는 내용의 공사도급계약서를, 2002. X. X. VVVV주식회사와 사이에 도시가스공사를 공사대금 00만 원에 도급 주는 내용의 공사도급계약서를, 2002. X. X. 주식회사 ZZZ과 사이에 정화조신축공사를 공사대금 0만 원에 도급 주는 내용의 공사도급계약서를, 2002. X. X. MMM 대표 양HP과 사이에 방화샷다제작공사를 공사대금 0만 원에 도급 주는 내용의 공사도급계약서를, 2002. X. X. 주식회사 NNN와 사이에 제작공사를 공사대금 0만 원에 도급 주는 내용의 공사도급계약서를 각 작성한 점, III주식회사는 2002. X. X. 철물공사에 대해 공사대금 00원의 견적서를 제시하였는데 건물 신축공사에서 철물공사는 필요한 것으로 보이는 점, 위 공사를 한 2002. X. 내지 X.경은 이 사건 거부처분으로부터 약 00년 전이므로 공사대금을 지급한 내역이라든지 실제로 공사를 하였다는 것에 부합하는 자료를 모두 제출하는 것은 사실상 곤란해 보이며 이 사건 건물의 신축을 위해 위 공사들은 모두 필요한 것으로 보이는 점, 원고는 [표2] 부대 공사비용 중 순번 1 공사 중 일부를 피고가 인정하였다는 취지로 주장하나 피고가 이 사건 거부처분 당시 인정한 비용은 순번 7, 10 중 일부로 보이므로 순번 1 공사비용은 모두 포함되어야 하는 점 등을 고려하면, [표2]의 부대 공사비용 중 순번 1, 3, 4, 7, 8, 11 내지 16, 18의 합계 000원 중 원고의 지분(00%)에 해당하는 000원은 필요경비로 인정된다고 할 것이다.

C) [Attachment 2] We examine the sequence 6,10 among the incidental construction costs.

In light of the following circumstances acknowledged by Eul evidence 3-1, namely, the YC representative claiming that the plaintiff performed the fire-fighting construction of the building of this case, although the YC representative prepared a written contract for construction cost of KRW 00,000,000,000,000, the actual construction cost at the time of the construction of the LLS corporation claiming that the plaintiff performed the HadY was stated as KRW 5-10,000,000,000,000,000,000,000 won for the fire-fighting construction of this case. According to Eul evidence 2, the plaintiff's assertion that the construction cost of the HadY representative at the time of the construction of the HadY corporation's assertion that the HadY stated that the HadY was the actual construction cost of the construction of the building of this case shall not be recognized as KRW 5-5,00,000,000,00,000.

D) [Attachment 2] We examine the sequence 5 of the incidental construction costs.

In light of the following circumstances, which are acknowledged as adding the purport of the pleading to the statement in Eul evidence 3-1, namely, the representative director of DDD entered into a contract for electrical construction with KimYC on April 16, 2002, but the construction cost was stated as KRW 0 million, and no evidence was submitted to prove that the construction cost was paid more than KRW 0 million, it is insufficient to recognize that the entry in Eul evidence 5-5 as the electrical construction cost exceeds KRW 0 million. In conclusion, [Attachment 2] Of the incidental construction cost, the Plaintiff’s share of KRW 0 million out of the No. 5 of the incidental construction cost is recognized as necessary expenses. Accordingly, this part of the Plaintiff’s assertion is with merit within the scope of KRW 0 million.

E) [Attachment 2] We examine the sequence 2 and 9 of the incidental construction cost.

In light of the following circumstances, which are acknowledged as adding the overall purport of arguments to Gap evidence 5-2 and 9, namely, the construction contract for the production and installation of sculptures concluded by KimYC with the PPP company is deemed to have been not related to the construction of the building of this case, and the construction contract for a private person between KimYC and SS is deemed to have been established for the business of the AAA Lestop, and is not related to the new construction of the building of this case, the evidence submitted by the plaintiff alone cannot be deemed to have been the cost required for the construction of the building of this case. Thus, this part of the plaintiff's assertion is without merit.

F) [Attachment 2] We examine the sequence 17 among the incidental construction costs.

In light of the following circumstances acknowledged in Gap evidence 5-17, the plaintiff asserted that KimYC ordered HH HH corporation to contract for pel 17, but the parties to the contract for the above construction work are TT rather than KimYC, and considering the content of the construction work, it is possible that KimYC included the above construction work contents in TT with the contract for TT corporation, the part equivalent to the plaintiff's share in the construction work amount No. 17 is insufficient to be deemed to have been disbursed by the plaintiff. Thus, this part of the plaintiff's assertion is without merit.

G) Sub-determination

Ultimately, the Plaintiff is recognized to have spent KRW 000 (=00 +000 + million) as the construction of the instant building.

3) We examine the part concerning the acceptance of the obligation to this GJ and the part concerning the debt to ParkMC, the expenses for withdrawal of auction, the amount of credit, KimSH, Kim JS, and the part concerning the debt acquisition against the plaintiff.

In light of the following circumstances, such as Gap 1, 3, 4, and Eul evidence No. 8 and Eul's testimony, five members such as the plaintiff, etc., i.e., three members of the plaintiff Kim YC and five members of the plaintiff Kim YC enter into a partnership agreement with 'B restaurant' and run the above restaurant in the building, and it is difficult for three members of the plaintiff, etc. to continue to cooperate with the plaintiff's business due to business difficulties, financial difficulties, etc., the five members of the plaintiff, etc., including three members of the plaintiff Kim 5 and three members of the plaintiff Kim YC, etc., to transfer the shares of the association of this case and withdraw from the association of this case, and three members of the plaintiff, etc., such as Kim YC et al., including those of the plaintiff Kim 1 and 3 members of the plaintiff Kim YC, etc., to arrange the shares of the plaintiff, etc., i.e., the part concerning the sale contract of this case, including Kim Y 300 percent.

4) We examine the cost of waterproof construction of the instant building.

In full view of the following circumstances, which are acknowledged as adding up the overall purport of pleading to Gap evidence 7-1 to Eul evidence 3, Gap evidence 11, witness witness evidence Y's testimony, i.e., the occurrence of problems such as drinking water in the building of this case around X. A. X. 203; KimYC, executing the business affairs of the association of this case, entered into a construction contract with Gap AAra Lestop 2, 3 floors and rooftop flooding construction, irrigation work, underground floor removal and wall removal and wall installation work; KimYC borrowed from Kim JS to pay the above construction cost; the above construction cost is considered as construction work cost to increase the real value of the assets at the time of the extension of the lifespan of the building of this case; and the cost of the above construction work is recognized as necessary expenses at the time of the plaintiff's share of the above construction cost.

5) We examine the costs of AArastop 2 and third floor repair works.

In addition to the purport of Gap evidence 8-1's oral argument, KimSH concluded a construction contract with X-H on the interior and external interior interior interior interior interior interior interior and external interior interior interior interior interior tegrative works (a remote area, plate, etc.), and concluded a construction contract with respect to electrical equipment such as interior tegrative pipe, sculpture, water supply and drainage pipes, electricity, telecommunication, broadcast, television (CATV), fire fighting, Internet-only cable, etc. As such, this part of the plaintiff's assertion does not seem to be a construction work to extend or increase the service life of transferred assets or to change the purpose of use, improve the use, or convenience in use without any further need.

6) We examine the costs of construction in BBB restaurant openings.

In addition to the statement in Gap evidence 9-1, it is recognized that three plaintiffs et al. entered into a contract with X. XS representative KimBG to remodel BB restaurant operated in the building of this case into a high-class restaurant. This construction is not for construction to extend the lifespan of transferred assets or to increase the real value, or for the alteration, improvement, or convenience of the use of the transferred assets. Thus, this part of the plaintiff's assertion is without merit without any further need.

7) Sub-committee

Therefore, in addition to those recognized by the Defendant in the instant refusal disposition, the Plaintiff paid 00 won in total necessary expenses (=00 won +00 million won) in addition to those recognized by the Defendant, so the said 00 won should be deducted from the transfer value.

Based on the above facts, the Defendant’s refusal disposition of this case is KRW 000,000 (i.e., the first reported amount of capital gains tax and the additional tax 000 - the reduced amount 00 won - the fair tax amount 00 won) should be revoked.

3. Conclusion

Thus, the plaintiff's claim is accepted within the scope of the above recognition, and the remainder is dismissed as there is no ground.

참조조문

-소득세법 제97조

-소득세법 제97조 제1항 제2호

-소득세법 시행령 제67조 제2항

-소득세법 시행령 제163조 제3항 제1호

참조판례

-대법원 2007. 10. 26. 선고 2006두16137 판결

유사 판례

-서울고등법원 2015. 08. 25. 선고 2015누31802 판결

-광주고등법원 2016. 04. 21. 선고 2015누6926 판결

-서울행정법원 2019. 01. 25. 선고 2018구합67503 판결

-부산지방법원 2015. 01. 30. 선고 2014구합20880 판결

-서울고등법원 2014. 08. 11. 선고 2013나2025109 판결