Calculation of proportional distribution of the acquisition cost at the time of sale and lease of real estate and necessary expenses at the time of acquisition of joint business;

Expenses for interior facilities of film theaters of the 8,90th and the second and second floors in the same building shall not be included in the expenses directly corresponding to the business for the sale of commercial buildings, and when acquiring joint business shares, the former operator shall not be charged with the expenses already appropriated as the cost.

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 5,440,560 for the year 2001, global income tax of KRW 1,179,835,370 for the year 2002, and global income tax of KRW 98,870,760 for the year 203 (in the description of the complaint’s claim, the amount of KRW 1,435,131,94 for the year 2002 is added to the amount of KRW 25,296,618 for the original return, and the amount of the Plaintiff’s claim for cancellation in this case appears to be a clerical error in the same amount).

1. Details of the disposition;

A. The Plaintiff newly constructed a 9-story building on the ○○○-dong ○○○○○-dong ○○○○○○-dong ○○○○○○○○-dong hereinafter referred to as the “instant land”) and sold the 1-story and the 2-story among them to a commercial building. The 8-story and the 9-story leased as a film theater, and the 3-7th and the remaining 7th are operated as a parking lot.

B. The Plaintiff filed a final report on the tax base of global income tax for the year 2001 through 2003 with respect to the sale of the above commercial buildings and the lease business of the film theater. On June 20, 2005, the ○○○ Regional Tax Office: (a) deemed that the Plaintiff’s sales cost of the commercial building was the acquisition cost of the film theater, which is a real estate for rent, and denied from the necessary expenses for the commercial building sales business, by deeming the Plaintiff as the acquisition cost of the film theater, which is the real estate for rent; and (b) notified the Plaintiff of the results of tax investigation to deny the acquisition cost of the land by deeming that the Plaintiff’s additional appropriation for the acquisition cost of the commercial building for the business year 2,902,41,31,31,000 won as the land acquisition cost for the business year 20

다. 이에 따라 피고는 2005. 12. 1. 원고에게 2001년도 귀속 종합소득세 5,440,560원, 2002년도 귀속 종합소득세 1,179,835,370원, 2003년도 귀속 종합™"그세 98,870,760원을 추가로 경정 ・ 고지하는 이 사건 처분은 하였다.

D. On February 27, 2006, the Plaintiff filed a request for examination with the Commissioner of the National Tax Service against the instant disposition. However, on October 23, 2006, the Plaintiff received a decision of dismissal, and the written decision was served on the Plaintiff on November 2, 2006, and the Plaintiff filed the instant lawsuit on January 25, 2007.

[Ground of recognition] Facts without dispute, Gap evidence 1-1 to 3, Gap evidence 2, 6, 7, Eul evidence 1-1 to 3, Eul evidence 4-1 and Eul evidence 4-2, and the purport of the whole pleadings

2. Whether the disposition is lawful;

A. Summary of the plaintiff's assertion

For the following reasons, the instant disposition is unlawful.

(1) In calculating the amount of income under the Income Tax Act, the necessary expenses deducted from the total amount of income in the year concerned are generally accepted as expenses corresponding to the total amount of income in the year concerned, and the sales business of the first and second commercial buildings among the buildings in this case, among the buildings in this case, the sales business of the first and second commercial buildings in the 8,99-story film theater facility construction cost, 4,463,126,00 won should be deemed necessary expenses for the sales business of the second and second commercial buildings

(2) 원고가 ●●건설 주식회사(이하 '●●건설'이라 한다) 및 김◎◎으로부터 이 사건 사업에 대한 지분을 인수하면서 지급한 인수대금 및 김◎◎이 이미 수령한 분양대금의 인수금액 1,716,941,500원 등 합계 2,902,441,000원 가운데 피고가 토지 취득원가로 인정한 831,110,000원{①원고가 ●●건설 지분의 인수대금으로 지급한 금원 중 ◇◇◇산업개발 주식회사(이하 '◇◇◇산업'이라 한다)의 양도차익 127,100,000원(500,000,000원 - 372,900,000원), ②김◎◎이 ●●건설과 공동으로 ◇◇◇산업개발로부터 이 사건 토지를 양수함에 있어서 부담한 출자금 200,000,000원, ③김◎◎이 원고로부터 수령한 지분양도대금 629,000,000원 중 최초 출자금 200,000,000원으로 초과하는 429,000,000원, ④원고가 김◎◎의 채무를 인수하여 정◆◆에게 대위변제한 사채이자 40,000,000원, ⑤□□건설 토지공사비 35,000,000원}을 제외한 나머지 2,071,331,000원도 이 사건 토지를 취득하는 과정에서 양도자인 전 사업자에게 대가로 지급한 금원이나 인수한 채무의 부담액으로 이 사건 토지의 취득원가로 인정되어야 한다.

(b) Related statutes;

(1) Income Tax Act (amended by Act No. 7837 of Dec. 31, 2005)

Article 18 (Real Estate Rental Income)

(1) Real estate rental income shall be the following incomes generated in the current year:

1. Income accruing from a lease of any real estate or right to the real estate;

2. Income accruing from a lease of a factory or mining foundation; and

3. Income accruing from renting a mining right by a mining right holder, mining concession holder, or virtue;

(2) The real estate rental income amount shall be the amount obtained by deducting the necessary expenses required therefor from the gross income amount.

(3) “Lease” in paragraph (1) means establishment of a right to lease on a deposit basis or other rights, payment for consideration, and receipt of consideration for the use of or benefit from the things or rights by lease, reservation, or other methods and payment for consideration.

(4) Necessary matters concerning the scope of real estate rental income shall be determined by Presidential Decree.

Article 27 (Calculation of Necessary Expenses)

①부동산임대소득금액 ・ 사업소득금액 ・ 일시재산소득금액 ・ 기타소득금액 똔느 산림소득금액의 계산에 있어서 필요경비에 산입할 금액은 당해 연도의 총수입금액에 대응하는 비용으로서 일반적으로 용인되는 통상적인 것의 합계액으로 한다.

(2) The expenses corresponding to the gross amount of incomes before the current year, which are not appropriated as the necessary expenses prior to the current year, shall be considered the necessary expenses.

(3) Necessary matters for the calculation of necessary expenses shall be prescribed by Presidential Decree.

(1) Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 19254 of Dec. 31, 2005)

Article 55 (Calculation of Necessary Expenses for Real Estate Rental Income, etc.)

(1) The necessary expenses corresponding to the total amount of real estate rental income and business income in each year shall be as follows:

1. Purchase price (excluding a purchase reduction or a purchase discount) of the raw materials for the commodities or products sold and the incidental expenses thereto. In this case, the original purchase price and incidental expenses thereto shall be applicable, if the relevant business operator has consumed such ones for a business use, as have been purchased for other purposes;

(c) Fact of recognition;

The following facts are not disputed between the parties, or acknowledged by comprehensively taking account of the whole purport of the pleadings in each entry in Gap evidence 2 through 6, Gap evidence 8, 9, Gap evidence 10-1, Gap evidence 11-1 through 6, Eul evidence 13-1 through 3, Eul evidence 3-1, Eul evidence 3-2, Eul evidence 4-1 and 2.

(1) The development of the industry at the place of residence in Korea, between the Korea Land Corporation and the Korea Land Corporation, set the price of the instant land as KRW 3,729,00,000, and concluded a sales contract and paid KRW 372,90,000 as the down payment to the Korea Land Corporation.

(2) In order to carry out the business of newly constructing and selling (lease) the sales and neighborhood living facilities, film pipes, etc. on the instant land (hereinafter “the instant business”), Kim Madle 200 million won in total, including Kim Madle 200 million won in Madle Madle 200 million in the construction of Bult Madle Madle Madle Madle Madb

(3) On May 18, 2001, the Plaintiff acquired the share of the construction of Bult Construction on the instant project, and distributed the rights and obligations at the same rate, and entered into a joint agreement with the National Agricultural Cooperative Federation of Korea to the effect that the Plaintiff shall be exempted from the obligations of Bult Construction on the loans of 2.6 billion won. Accordingly, on May 23, 2001, the Plaintiff made a registration of ownership transfer on the instant land under the joint name of the National Agricultural Cooperative Federation of Korea on the same day after having paid the maximum debt amount of 3,380,000,000 won as to the instant land, and the Plaintiff paid the land price and damages for delay, etc. due to the loan granted by establishing a collateral security in the future of the National Agricultural Cooperative Federation of Korea. Thereafter, on July 5, 2001, Kim Wil and the Plaintiff obtained a construction permit on the construction of the instant building, and started the construction work around that day.

(4) 원고의 남편인 조■■는 2001. 7. 7. 김◎◎과 사이에 이 사건 사업에 대한 동인의 지분을 대금 4억 원에 양수하되, 이 사건 사업과 관련하여 동인이 부담하고 있던 채무도 함께 인수하기로 약정하였는데, 그 후 원고 및 조□□와 김◎◎ 사이에 계약의 이행을 둘러싸고 분쟁이 발생하여 김◎◎이 계약해제를 통보하는 한편, 원고를 상대로 형사고소를 제기하자, 원고는 2001. 12. 19. 김◎◎과 사이에 동인에게 6억 원을 지급하고, 김◎◎은 이 사건 사업과 관련한 일체의 권리를 원고에게 양도하며, 원고는 이 사건 사업과 관련하여 김◎◎이 부담한 채무를 면책적으로 인수하기로 최종 합의를 하면서 이로써 기존의 계약을 대체하기로 하였다. 이에 따라 원고는 김◎◎이 수분양자들로부터 지급받은 분양대금 1,716,941,500원을 인정하고 이를 그대로 안게 되었다.

(5) Meanwhile, at the time of promoting the instant project jointly with the Plaintiff, the Kim Mandong Co., Ltd. entered into a management consignment agreement with the Plaintiff on the 8,9th floor of the new building, and concluded the management consignment agreement with the Plaintiff on the movie theater, and the equipment cost of the Plaintiff as the movie theater was borne by the said company. Since the construction was notified of the termination of the agreement with the said company on the wind delayed, the Plaintiff and Kim Mandong Co., Ltd. entered into a management consignment agreement on July 16, 2001 on condition that the cost of the movie theater equipment cost is borne by the Plaintiff on the part of the Plaintiff. Accordingly, the Plaintiff spent KRW 4,463,126,00 as the cost of the movie theater equipment cost to the movie theater facility cost. After entering into a recontract with the Gangnam △△△, the total sales value of the commercial building increased from KRW 20,071,865,00 to KRW 23,86,735,00,00.

(6) On December 27, 2001, the Plaintiff completed the report on the change of the construction participant who unilaterally changed the name of the building owner from the previous Plaintiff and Kim Mandong, and on September 11, 2002, the Plaintiff completed the registration of ownership preservation on the instant building.

D. Determination

(1) According to Article 27 (1) of the Income Tax Act, the amount to be included in necessary expenses in the calculation of real estate rental income and business income shall be the sum of expenses corresponding to the total amount of income in the current year, which is generally accepted as ordinary expenses.

First of all, the plaintiff's assertion that the sales business of the first and second floors among the building of this case had been caused by the failure of attracting a movie theater on the 80th and nine floors is insufficient. Even if the plaintiff's assertion is true, it is difficult to view that the construction cost of the facility construction of the movie theater of 8,9 floors is generally accepted as the cost of the sales business of 1,20th and second floors, not the 8,9 rental business, and the construction cost of the facility construction of the movie theater of 8,9 floors as the cost of the sales business of 20,071,865,00 won from 23,86,735,000 won from 20,794,870,000 won after the conclusion of the movie theater management consignment contract, it is merely an indirect and economic effect of entering the movie theater of the same building, and therefore, there is no evidence to acknowledge that the construction cost of the movie theater of 8,99 immediately falls under the cost of the sales business of 1 and 2nd floors.

Therefore, this part of the plaintiff's assertion is without merit.

(2) Article 55(1)1 of the Enforcement Decree of the Income Tax Act provides that "the purchase price of the raw materials for the commodities or products sold and the incidental expenses thereof" shall be one of the necessary expenses corresponding to the total income of each year of real estate rental income and business income.

As seen earlier, the Plaintiff first acquired shares in the construction of Bult Construction among the instant projects, which were operated by Kim Manung Construction and Bult Construction, and jointly carried on the business at the rate of 50:50 shares, and completed the registration of ownership transfer in the name of Kim Manung Construction and joint with Kim Manung, and later, the Plaintiff decided to take over shares in Kim Man Law and paid 600 million won to the Dong in the final settlement of accounts. In addition, the Plaintiff’s acquisition of shares in the instant land and building, including KRW 1,716,941,50, which was received by the Dong in connection with the instant business, did not constitute the sale of 1,716,941,50, and it cannot be viewed that the Plaintiff’s purchase of shares in Bulk Construction or Kim Man Construction and the sale of shares in the instant land constitutes the sale of shares in the instant land under its own name, and thus, the Plaintiff cannot be viewed as having received shares in the sale price of 150, because it can not be considered as necessary expenses.

Therefore, this part of the plaintiff's assertion is without merit.

3. Conclusion

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