early 207west 4167 ( October 13, 2009)

Even if a commercial building was leased to a related corporation without compensation, it does not constitute an unfair act where it is reasonable.

It cannot be ruled out that there is no possibility that the rent should have been placed in an empty office if the rent was to be leased without compensation, and that there was a risk of receiving a claim for damages from the buyers of the sports center, and thus, it cannot be said that the economic rationality has been lacking.

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

1. 피고 ★★세무서장이 2007. 7. 20. 원고에게 한 2006년 귀속 종합소득세 부과처분 중 766,795,220원을 초과하는 부분을 취소한다.

2. 원고의 피고 ☆☆세무서장에 대한 청구와 피고 ★★세무서장에 대한 나머지 청구를 각 기각한다.

If a monthly rent of KRW 67.6 million plus an amount of KRW 5% per annum for KRW 676 million, which is the amount calculated by adding one-month interest per annum for KRW 67.6 million to a reasonable monthly rent for the eight-month period, the reasonable rent for the eight-month period is KRW 563,002,432, and the amount of KRW 348,134,443 among them shall be counted as the income amount of each income tax base for the 2004 business year, and KRW 214,867,989 as the income amount of each income tax for the 2005 business year (hereinafter referred to as "the portion related to the free lease").

② Around December 2004, the Plaintiff filed a comprehensive income tax by adding the above amount to necessary expenses for the business year 2004 on the grounds that the Plaintiff paid the total amount of KRW 3,059,323,280 for the instant building under the Seoul Metropolitan Area Readjustment Planning Act. However, among the overconcentration charges paid by the Plaintiff, KRW 129,678,132 equivalent to 120/2,831, which is a joint owner of the localCC, out of the overconcentration charges paid by the Plaintiff, should not be included in necessary expenses (hereinafter referred to as “the overconcentration charges-related portion”).

③ 원고가 2003. 11. 1.부터 2006. 말경까지 소득세법상 특수관계인의 지위에 있는 서○○에게 서울 ★★구 ☆☆동 824-27 대 462.8㎡(이하 '824-27 토지'라 한다)를 임대 보증금 없이 월 임대료 700만 원에 임대한 것은 부당행위계산부인의 대상에 해당하는 데, 부당행위계산부인대상금액을 정함에 있어 인근 토지에 대한 임대사례를 포착할 수 없어서 구 법인세법 시행령(2007. 2. 28. 대통령령 제19891호로 개정되기 전의 것, 이 하 같다) 제89조 제4항 제1호에서 정한 방식인 '당해 자산 시가의 100분의 50에 상당 하는 금액에서 그 자산의 제공과 관련하여 받은 전세금 또는 보증금을 차감한 금액에 정기예금이자율을 곱하여 산출한 금액'을 적정 임대료로 보고 실제 임대료를 차감하되, 위 방식에서 말하는 '당해 자산 시가'는 원고가 824-27 토지를 1995. 5. 15.자로 취득 할 때의 가격인 9,497,261,494원(이하 '1995년 거래가격'이라 한다)으로 보고 계산하면, 과세기간(2003. 11. 1.부터 2006. 말경까지) 동안의 적정 임대료와 실제 임대료의 차액은 합계 322,882,252원이 되므로, 위 금원을 해당 과세기간의 부가가치세과세표준의 매출세액과 소득세과세표준의 수입금액에 각 산입하여야 한다(이하 '저가 임대 관련 부분'이라 한다).

다. 서울지방국세청장의 과세자료 통보에 따라 원고의 사업지 관할 세무서장인 피고 ☆☆세무서장과 원고의 주소지 관할 세무서장인 피고 ★★세무서장은 별지 과세처분 내역표 중 '과세처분 내역' 난의 기재(2006년 귀속 종합소득세에 관하여는 경정 전의 것)와 같이 원고에 대하여 종합소득세와 부가가치세를 경정ㆍ고지하였다(이하 '당초 처분'이라 한다).

D. On October 11, 2007, the Plaintiff appealed to the Tax Tribunal for a tax trial. On February 13, 2009, the Tax Tribunal decided that the disposition of global income tax and value-added tax imposed on the Plaintiff was leased to the non-party company the entire first floor and the second underground floor of the instant building to the non-party company without compensation from August 2004 to December 2004, the tax base and tax amount of global income tax were corrected. The remaining claims are dismissed.

마. 위 조세심판원의 결정에 따라 피고 ★★세무서장은 원고에 대하여 당초 처분 중 2006년 귀속 종합소득세를 914,361,583원으로 재경정ㆍ고지하였다(이하 위와 같이 일부 감액변경된 당초 처분을 '이 사건 처분'이라 한다).

[Ground of recognition] Facts without dispute, entry of Gap evidence 1 to 3, purport of the whole pleadings

2. The assertion and judgment

A. The plaintiff's principal

(1) As to the free lease-related part

In selling the instant building in units, there was a need to attract a sports center in line with the time of occupancy of the building by advertising the membership of the sports center in a premium increase, and as such, there was a need to rent for a few months during the lease period under the current economic situation, it cannot be said that the Plaintiff’s failure to receive rent for five months while leasing the 1 and 2nd floor underground of the instant building to the non-party company is an abnormal transaction that lacks economic rationality.

(2) In the case of overconcentration charge-related parts

The LandCC is merely a single owner who purchased the 1, 2, 307 units above the ground and the 3,307 units above the ground of the building in this case, and only lends the name of the owner of the building in this case to the owner of the building. Since the Plaintiff is a party to the construction contract of the building in this case and the construction cost of the building in this case and the owner of the building in this case is the sole owner of the building in this case, the total overpopulation charge related to the building in this case should be included in

(3) Related to the low-price leased portion

824-27 Land’s transaction price in November 1, 2003 to end of 2006, which is the taxable period, cannot be deemed as the market price at the time of the taxable period. However, it is unlawful that the Defendant included the rent calculated based on the above price as the output tax amount of value-added tax and the income tax base in each taxable period.

(b) Related statutes;

It is as shown in the attached Form.

(c) Fact of recognition;

(1) The progress, etc. of the construction of the building in this case (related to overconcentration charges)

(A) On September 9, 200, the Plaintiff and LandCC obtained a building permit from the head of Seoul Special Metropolitan City, on the part of the Plaintiff and LandCC as the co-owner’s owner, with the content that the Plaintiff is a 2,711/2,831 shares; the Plaintiff owned 1,33.38 square meters on the land on which the LandCC owned 120/2,831 shares; the total floor area of 1,33.38 square meters; the total area of 47,858.46 square meters (main use: the second class neighborhood living facilities; the business facilities).

(B) Around September 17, 2001, the Plaintiff agreed to contract the construction work cost of 39 billion won for the two construction companies, and the said company completed the instant building in accordance with the above construction permit around July 2004.

(C) On July 7, 2004, the Plaintiff and LandCC, as the nominal owner of the instant building, obtained approval for the use of the instant building from the Mayor of Seoul Special Metropolitan City. On July 23, 2004, the Plaintiff and LandCC completed the registration of initial ownership in the name of the Plaintiff in relation to the total number of the first and second floors of the instant building and third floors 307 above the ground, and the remaining parts in the name of the Plaintiff in relation to

(D) In accordance with Articles 12 and 15 of the Seoul Metropolitan Area Readjustment Planning Act, the head of Seoul Special Metropolitan City: (a) determined a person obligated to pay the instant building as a joint owner of the instant building on December 2004, on the ground that he/she is a population-concentrating facility; (b) imposed KRW 3,059,323,280 on the Plaintiff and localCC; and (c)

(E) Meanwhile, the Plaintiff purchased 3,01,317,375 Won from the Plaintiff the total 1,2, and 307 of the third floor above the ground of the instant building. Recognizing that the Plaintiff’s share in the land of 837-36, the site price of the section for exclusive use is KRW 0,000,000, and the sale price was calculated only with the building price of the section for exclusive use. The unit sale price per square meter based only on the 1,2, and 307th floor above the ground of the instant building is equal to the unit sale price per square meter based on only the building price excluding the site price among the sale price for the 5th floor above the ground of the instant building.

(F) A branchCC paid the above sales price as a rental deposit that was leased to another unit of 1,2, and 307 above the third floor above the ground.

(2) The process, etc. of concluding a lease contract on the first and second floors of the instant building between the Plaintiff and the Nonparty Company (on a free lease-related part)

(A) The Plaintiff recruited the number of buyers of the instant building from September 9, 200, which was the day on which the building permit for the instant building was issued, to July 2004, from September 9, 2000, to the day on which the registration for the preservation of ownership was completed. During that process, in order to increase the sale rate, the Plaintiff advertised that the buyers shall be paid free of charge the membership of the sports center operated in the underground

(B) On July 23, 2004, the rate of unsold in lots for each floor based on the registration of initial ownership of the instant building was 16.52% with the ground level of 1 to 23 floors, 79.14% with the ground level of 10%, and 100% with the ground level of 1 to 23 floors.

(C) On August 2004, when the time of occupancy of the buyers of the instant building was imminent, the Plaintiff agreed to operate the sports center from the above leased section to the non-party company by setting the lease deposit amounting to KRW 676 million, the lease deposit amount to KRW 676 million, and KRW 67.6 million. However, the Plaintiff agreed to operate the sports center from the above leased section to the above lease section.

(D) As of December 31, 2004, the membership status of the above sports center operated by the non-party company is as of December 31, 2004, the number of members who received membership rights of the sports center from the plaintiff and did not pay separate deposits according to the plaintiff's advertisement was about 91, and the number of other general members was about 35.

(3) The details, etc. of the lease agreement between the Plaintiff and Seo Seo ○○○ (the lower part related to the lease)

(A) On May 15, 1995, the Plaintiff purchased 824-27 land in KRW 9,497,261,494, and completed the registration of ownership transfer thereof. On June 26, 1995, the Plaintiff set the right to collateral security and the maximum debt amount of KRW 5.4 billion on KRW 1 per the maximum debt amount and KRW 5.4 billion.

(B) Around 2003, the Plaintiff leased the land from November 1, 2003 to December 31, 2004, the monthly rent of KRW 7 million without a rental deposit. Since then, the Plaintiff extended the lease period to November 2006 without changing the rental deposit and rent.

(C) Around May 2005, Seo-○○ constructed, on the land above 824-27, three underground floors, ten above ground floors, and one story of a rooftop, and completed the registration of ownership preservation, and thereafter leased the above. The sum of the deposit money for the above building as of September 2005 was KRW 940 million, and the aggregate of the deposit money for the monthly rent was KRW 74,700,000.

(D) From November 1, 2003 to the end of 2006, the difference between the reasonable rent and the actual rent, which is the taxable period calculated as shown in the Defendant’s method, is the total of 322,882,252, and the reasonable monthly rent calculated on the basis thereof is about 16.6 million won in 2003, about 15.4 million won in 2004, about 14.2 million won in 205, and about 17.5 million won in 206.

(E) Meanwhile, the officially assessed land price of 824-27 was changed to KRW 7.95 million in 1995, KRW 8.8 million in 1996, KRW 8.88 million in 1997, KRW 8.177 million in 1998, KRW 6840 million in 1999, KRW 7.220 million in 2001, KRW 7.75 million in 2002, KRW 8730,980 in 2004, KRW 105 million in 2005, KRW 1996, KRW 1997, KRW 1900 in 200, KRW 139 million in 207.

[Ground of recognition] The facts without dispute, Gap evidence Nos. 4 through 11, 17, Eul evidence Nos. 2 through 10, the witness witness testimony and the purport of the whole pleadings

D. Determination

(1)For the first note:

The provision regarding the wrongful calculation under Article 41 of the former Income Tax Act is effective and appropriate in law, and even if the actual act or calculation of a resident is calculated on the basis of accounts, where such act or calculation constitutes a type of transaction with a related party under each subparagraph of Article 98(1) of the former Enforcement Decree of the Income Tax Act, which unreasonably reduces the tax burden under each subparagraph of Article 98(2) of the same Act, and its purpose is to realize fair taxation by denying it under the tax law and calculating the amount of income in a manner prescribed by the law. In light of the economic person’s perspective, the provision applies only to cases where it is deemed that the economic rationality was neglected due to disregarding the natural and unreasonable act calculation. Determination of whether the economic rationality exists should be made based on whether the transaction lacks economic rationality in light of sound social norms and commercial practices (see, e.g., Supreme Court Decisions 2003Du9893, Oct. 27, 2004; 205Du757, Sept. 24, 2009).

According to the above facts, although the plaintiff is deemed to have leased part of the building of this case to the non-party company, who is a specially related person for five months, the case held that the plaintiff's lease contract was not concluded in a way that the non-party company could not receive rent from the non-party company for six months because it was difficult for the plaintiff to use the non-party company rent of 1 and 2 underground continuously until it rents the non-party 1 and 2 underground without providing the profit of rent free of charge for five months. In light of the current transaction situation at the time, it cannot be ruled that the non-party company could not receive rent from the non-party 2 to the non-party company because it was false or exaggerated advertisement from the purchaser of the above sports center membership for a considerable period of five months, since it was difficult for the plaintiff to obtain rent from the non-party 1 to the non-party 2 company for the purpose of reducing the rent rate of the building of this case, etc. in the case of some of the Seoul Special Metropolitan City area or the tenant is a good company.

Therefore, the plaintiff's above assertion is justified.

(2) in the second place, in accordance with the second place.

The following facts revealed in the facts of recognition as above: (a) the Plaintiff, a joint owner of the land, and Dong-dong, were the joint owner of the building in order to construct the commercial building of this case, and were granted a building permit, and maintained the name of the joint owner until the approval for use was granted; (b) the groundCC provided shares in the land to construct the building; (c) thereby making it possible to construct the building of this case; and (d) after the completion of the building of this case, the landCC provided ownership of the land in proportion to the initial shares, and (d) the Plaintiff and the joint owner of the building were not obligated to pay construction charges to the Plaintiff, in full view of the transactional reality, by maintaining the ownership of the area of the site in proportion to the initial shares; and (e) the rent rate of rent of the building of this case was remarkably lower than that of the above part. In addition, it is reasonable to deem that the Plaintiff and the joint owner of the building were not obligated to pay construction charges in the name of the Plaintiff and the entire owner of the building.

Therefore, the other plaintiff's above assertion is without merit.

(3) in the third chapter.

According to Article 13(1) and (4) of the former Value-Added Tax Act (amended by Act No. 8142 of Dec. 30, 2006), Article 50(1)2 of the former Enforcement Decree of the Value-Added Tax Act (amended by Presidential Decree No. 19892 of Feb. 28, 2007), Article 41(2) of the former Income Tax Act (amended by Act No. 8144 of Dec. 30, 2006), Article 98(4) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 19890 of Feb. 28, 2007), where land is leased to a person with a special relationship under the Value-Added Tax Act and Article 13(1) and (4) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 19892 of Feb. 28, 2007), the reasonable market price of the land shall be calculated by multiplying the deposit by 50% of the former Enforcement Decree.

In this case, as to whether the market price of 824-27 at the time of the above taxation period of 824-27, which is the asset, can be seen as the market price of 1995, based on the method stipulated in Article 89(4)1 of the former Enforcement Decree of the Corporate Tax Act, the following circumstances revealed as follows, namely, the officially assessed land price of 824-27, from 1995 to 2007, are increasing compared to that of 1995, except for the period of 1999 to 2006. In particular, it is difficult to view that the Plaintiff’s price of 24-277, which was 1950,000 won for the above taxation period, was 475,000 won for the above taxation period, and it is difficult to view that the Defendant’s price of 295,000 won for the above taxation period was 1,700,000 won for the above taxation period, and thus, 27274-27,07,000.

Therefore, we cannot accept the other plaintiff's assertion.

(4) Sub-performance theory (based on fair tax amount)

Therefore, if the Defendant’s mistake on the leased portion is corrected, and the remainder is excluded from the necessary expenses of the overconcentration charge equivalent to the share ratio of the localCC, and the reasonable rent and the difference between the actual rent for the land calculated on the basis of the transaction price in 1995 is included in the global income tax and the tax base of the value-added tax for the pertinent taxable year, and the reasonable global income tax and the value-added tax are calculated by calculating the reasonable global income tax and the tax base of the value-added tax, the detailed calculation of the tax amount of global income tax for the year 2006 is as shown in the attached Table 206.

따라서, 피고 ★★세무서장이 2007. 7. 20. 원고에 대하여 한 2006년 귀속 종합 소득세 부과처분 중 766,795,220원을 초과하는 부분은 취소한다.

3. Conclusion

Thus, the plaintiff's claim is accepted within the above scope of recognition, and the remaining claims are dismissed as they are without merit.