Chuncheon District Court 2009Guhap2588 (2010.08)

Cho High Court Decision 2009Du2865 (Law No. 29, 2009)

Whether the real estate brokerage commission may be deemed necessary expenses

Although it is alleged that the land was transferred in lieu of the payment of the high amount brokerage commission, it is judged that the land was transferred by paying the brokerage commission separately.

(Chuncheon)2010Nu486 global income and revocation of such disposition;

○ Kim

○ Head of tax office

Chuncheon District Court Decision 2009Guhap2588 Decided July 8, 2010

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance shall be revoked. The Defendant’s disposition of imposition of KRW 52,623,020 on January 6, 2009 against the Plaintiff on January 6, 2009 shall be revoked.

1. Details of the disposition;

The court's explanation on this part is identical to the statement of the first instance court in addition to the fact that "1,00,000 won in the corresponding part of the judgment of the first instance" is "10,000,000 won in the corresponding part of the judgment of the first instance." Thus, this Court cites it as it is in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Since ○○○○○○○○○-si, ○○○○○○○○○, which is owned by the Plaintiff, arranged the sale of three parcels of land, such as ○○○○○○○, 256-11, 256-8, and 256-2, the Plaintiff received only 16,460,000 won out of the purchase price of the instant land and completed the registration of ownership transfer on the instant land to KimA in lieu of the payment of brokerage commission, but only accepted the horses of KimA that the Plaintiff actually purchased the instant parcel of land from the Plaintiff and actually paid the said full amount to the Plaintiff, and was unlawful for the Defendant’s disposition that was excluded from the necessary expenses.

B. Determination

(1) Where a taxpayer contests whether or not the cost reported by the taxpayer is a real cost, if the tax authority proves that the other party to the tax payment is a false cost, it is necessary for the taxpayer to prove that such cost has been actually paid if it is proven to the extent that the other party to the tax payment is a false cost (see, e.g., Supreme Court Decisions 2002Du12786, Dec. 12, 2003; 96Nu8192, Sept. 26, 1997).

(2) In light of the purport of the entire pleadings as to this case, the Plaintiff and KimA prepared on June 3, 2004 a real estate sales contract with the purport that the Plaintiff sells the instant land to KimA for KRW 10,000,000,000. On February 21, 2008, KimA managed the payment of the purchase price in the name of KimA and the intermediate payment in the name of ○○ 2,00,000,000 won to the Plaintiff on July 1, 2004, the Plaintiff prepared on July 1, 2004, 2000 KRW 50,000,000,000 for KRW 2,00,000,000 for KRW 60,000,000,000 for KRW 0,000,000 for KRW 2,00,000,00 for KRW 30,00,00,000.

Comparing the transfer value of the instant land (120,00,000 won) and the transfer value of the said three parcels (389,00,000 won) as revealed by the aforementioned evidence, the value of the instant land is excessively high even if the value of the said three parcels of land is deemed to be a brokerage commission for the sale and purchase of the said three parcels of land, it is insufficient to recognize that the Plaintiff had completed the registration of ownership transfer with respect to the instant land in lieu of the payment of brokerage commission, and there is no other evidence to acknowledge otherwise. Accordingly, the Plaintiff’s above assertion is not acceptable.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed without any justifiable ground, and the judgment of the court of first instance with the same conclusion is justifiable, and the plaintiff's appeal is dismissed.