Seocho 2014west 126 ( March 4, 2015)

Although the exclusion period of capital gains tax and additional payment are legitimate, necessary expenses that are considered to be paid generally at the time of real estate sale should be recognized.

The disposition of this case, which applied the starting date of the exclusion period of capital gains tax from June 1 of the following year to 5/10,000 from the time of transfer of assets, is legitimate; however, considering the general fact that it is reasonable to pay brokerage expenses, etc. in the course of real estate sale, brokerage expenses, repair expenses, construction design expenses should be recognized

Article 26-2 of the former Framework Act on National Taxes

2015Gudan10530 Revocation of Disposition of Imposing capital gains tax

Yellow AA

head of Dongjak-gu Tax Office

June 8, 2016

August 19, 2016

1. The Defendant’s imposition of capital gains tax of KRW 132,091,20 on April 11, 2013 by the Plaintiff on April 11, 2013 exceeds KRW 112,293,883, out of the imposition of capital gains tax of KRW 132,09

2. The plaintiff's remaining claims are dismissed.

3. Of the costs of lawsuit, 90% is borne by the Plaintiff, and the remainder is borne by the Defendant.

Cheong-gu Office

The Defendant’s disposition of imposition of capital gains tax of KRW 132,091,20 for the year 002 against the Plaintiff on April 11, 2013 (the “statement in the written complaint appears to be a clerical error) is revoked.

1. Details of the disposition;

A. On April 10, 2002, the Plaintiff acquired the land and the land and buildings of the △△△△△△△△△△△△△△△ (hereinafter referred to as the “land of this case”), from the first building of this case, and on April 16, 2002, the Plaintiff acquired the land for △△△△△△△△△△△△△△△△△△△△ (hereinafter referred to as the “first real estate”) from the Busan OOO-dong OOO-dong OO-dong, Busan on October 10, 200, and transferred the transfer value to B on October 10, 2002, the Plaintiff calculated the actual transaction value as 336,60,000,000, the actual transaction value as 319,450,000, the necessary expenses, 15,350, and 350,000 won.

B. On April 11, 2013, the Defendant issued a corrective notice to the Plaintiff to additionally pay KRW 252,745,800 (including additional tax on negligent return, KRW 8,672,838, KRW 156,919,613) of the transfer value of the instant real estate and the instant land 2 as KRW 336,60,000, not KRW 580,000, and KRW 15,957,350, and KRW 252,745,80 of the transfer income tax for the year 2002 (including additional tax on negligent return, KRW 8,672,838, KRW 156,919,613).

C. The Plaintiff asserted that the acquisition value of the instant real estate No. 1 and the instant land No. 2 is not KRW 319,450,000, not KRW 435,000 (= KRW 168,00,000 + KRW 267,000 of the instant real estate No. 1) and necessary expenses are KRW 15,957,350, not KRW 15,026,910, and filed a request for a trial with the Tax Tribunal after filing an objection, and the Tax Tribunal determined that “The acquisition value of the instant real estate No. 1 and the instant land No. 2 is KRW 168,00,000, and the acquisition value of the instant land No. 2 is corrected according to the results of a reinvestigation of financial transactions, etc., and that “the remaining request for a trial is dismissed.”

D. On May 1, 2015, the Defendant conducted a reinvestigation to verify the acquisition value of the instant land No. 2 according to the decision of the Tax Tribunal, and rendered a decision of correction to reduce the acquisition value of the instant real estate and the instant land No. 2 to KRW 435,00,00 (including the disposition of the instant real estate No. 1 + KRW 168,00,000 + the transfer value of KRW 580,000,000, necessary expenses, and the transfer value of KRW 15,957,350, and the amount of KRW 120,654,60,000 for the transfer income tax for the year 202 (hereinafter referred to as the “disposition of the instant case”) (including the additional tax for negligent return of KRW 4,513,431,422,414)).

[Ground of recognition] Facts without dispute, Gap 1 to 3 evidence, Eul 1 to 3 evidence (including paper numbers; hereinafter the same shall apply) and the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

(1) The proviso of Article 12-3(1)1 of the Enforcement Decree of the Framework Act on National Taxes excludes the period of preliminary return from one association member's relocation right, one of which is unconstitutional and denying the fixed power of preliminary return without reflecting the change of the method of determining transfer income tax reporting and tax payment system. In determining the starting point of the period of exclusion of national taxes, the period of imposition of national taxes on the following day of the final return without considering the characteristics of each item is excessively extended by the period of imposition of national taxes under the Act, thereby undermining the rapid stability of tax legal relations, thereby violating the equal rights under Article 11 of the Constitution, the prohibition of unjust infringement of property rights under Article 23 of the Constitution, and the principle of excessive prohibition under Article 37 of the Constitution, and the period of exclusion of imposition of transfer income tax is proceeding after the final return, and logical contradictions between the period of exclusion of imposition of transfer income tax and the period of extinctive prescription. Therefore, the period of exclusion shall be calculated from the date of preliminary return.

(2) In addition to those recognized as necessary expenses at the time of the instant disposition, the Plaintiff’s commission (i.e., KRW 1 million at the time of acquiring the instant first real estate + KRW 1 million at the time of acquiring the instant land 2 + KRW 1 million at the time of acquiring the instant land 1

Since real estate and the second land transfer cost, 5 million won for construction repair cost, 19,069,560 won for construction design cost, and 69,560 won for certified judicial scrivener’s expenses, etc. have been disbursed, 19,069,560 won should be additionally recognized as necessary expenses. Accordingly, the instant disposition on a different premise is unlawful.

(3) An amendment to uniformly impose additional tax on the number of delayed payment days by means of multiplying the additional tax rate by the number of days for delay of payment is an appropriate disciplinary measure to impose additional tax on the unpaid amount of unpaid amount of tax, and to maintain a reasonable proportional relationship between the degree of violation of the obligation and the sanction, and the additional tax for unfaithful payment was reduced from 5/10,00 to 3/10,000 after the amendment to the Enforcement Decree of the Income Tax Act on December 30, 202. In light of its legislative intent, the additional tax on global income tax should be applied from the income portion arising from the taxable period in which the date of promulgation falls, while Article 4 of the Addenda of the Enforcement Decree provides that the additional tax on transfer income tax should be applied from the first transfer after the enforcement of the Enforcement Decree so that the additional tax on transfer income tax violates Article 31 of the Constitution and Article 14 of the Addenda of the Enforcement Decree, not from the point of time of time of amendment to the application of the additional tax on transfer income tax on the premise that the additional tax on transfer income tax should be applied.

(b) Related statutes;

It is as shown in the attached Form.

C. Judgment on the assertion that the exclusion period of national tax has expired

The Plaintiff, at the time of the preliminary return of capital gains tax on the first real estate of this case and the second land of this case, prepared a false sales contract with the actual transaction value of KRW 580,00,000, which is KRW 336,600,000, and under-reported, there is no dispute between the parties. It is recognized that the exclusion period of 10 years is applied as it constitutes fraudulent or other unlawful acts.

However, with respect to the starting point of the preliminary return of capital gains tax, it is exceptional to reduce the burden of the taxpayer who has no change after the preliminary return, and there is no ground to deem that it affects the calculation of the exclusion period of national taxes. If a preliminary return of capital gains tax is filed again with the same contents after the preliminary return, the effect of the determination of liability for tax by the preliminary return is maintained as it is (see Supreme Court Decision 2009Du22850, Sept. 29, 201). If a preliminary return is filed with a different final return, the effect of the determination of liability for tax by the preliminary return becomes extinct due to absorption of the effect of the determination of liability for tax by the final return of tax (see Supreme Court Decision 2006Du1609, May 29, 2008). The capital gains tax is subject to the exclusion period of taxation by comprehensively calculating the tax base and the amount of capital gains tax generated during the relevant taxable period, and thus, it cannot be deemed as a violation of Article 110 through 37 of the Constitution.

Therefore, the exclusion period of imposition of capital gains tax due to the transfer of assets shall commence from June 1 of the following year, which is the next day from the time when the period of final return of tax base expires, and the fact that the Plaintiff transferred the real estate of this case and the land of this case No. 1 and the land No. 2 of this case to October 10, 2002, is not a dispute between the parties. Thus, the exclusion period of imposition of capital gains tax due to the transfer of the real estate of this case and the land No. 2 of this case is legitimate as of May 31, 2003, which is the time when the final return of tax base of capital gains tax for the transfer of the real estate of this case ends from the next day of June 1, 2003, which is the time when the final return of tax base of capital gains tax for the transfer of this case ends, and the disposition of this case was made on May 31, 2013.

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

D. Determination on the assertion of necessary expenses

(1) Facts of recognition

(A) On April 10, 2002, the Plaintiff acquired the instant 1 real estate. On April 16, 2002, the Plaintiff acquired the instant 2 land. At the time of the acquisition of the instant 2 land, there was a single-story house (hereinafter “the instant 2 building”) on the ground of the instant 2 land, and the Plaintiff acquired the instant 2 building including the instant 2 building.

(B) On April 16, 2002, the Plaintiff newly built the land No. 1 and accommodation facilities on the land No. 2 of this case to the head of the OOO, and submitted an application for construction, substantial repair, and alteration of the purpose of use to the head of the OO on May 10, 202.

(C) On October 10, 2002, the Plaintiff: (a) transferred to B the instant real estate and the instant land No. 2 and the instant building No. 2 (hereinafter referred to as “second real estate”) all of the instant real estate to B, which was coloring the land to be newly built for accommodation on October 10, 2002; (b) while filing a preliminary return of capital gains tax, the Plaintiff omitted the instant building No. 2 from the transferred assets.

(D) On October 15, 2002, Korea-B removed both the first building and the second building in this case after reporting the change of construction participants to the head of the OOO on October 15, 2002, and newly built the telecom on the ground of the first and second building in this case.

[Ground of recognition] Facts without dispute, Gap 8, 14, 17 evidence, Eul 1 and 7 evidence, Eul B's testimony and the purport of the whole pleadings

(2) Determination as to the assertion on the brokerage commission

In full view of the following circumstances, it is recognized that, in the process of concluding a sales contract for real estate, there is no mediator in the process of adding the overall purport of pleadings to the testimony of the witness Gap 6 and Eul. In other words, it seems that there is no intermediary in consideration of the relationship between the plaintiff and the seller, and the buyer, and in the event of transfer of real estate, it is general to pay brokerage commission to the broker. Therefore, it is difficult to easily understand that the broker is zero won. In addition, OCC, which was involved by the plaintiff when transferring the real estate of this case, submitted a written statement to the effect that it was involved at the time of acquisition and transfer of the real estate of this case, and received a total of four million won as brokerage commission, the plaintiff paid four million won at the time of acquisition and transfer of the real estate of this case.

Therefore, this part of the plaintiff's assertion is justified.

(3) Judgment on the assertion of repair cost

According to the evidence evidence No. 7, the plaintiff paid the building repair work for the building No. 1 and No. 2 of this case to South E, the representative of DD industrial company around May 2002, the plaintiff paid the building repair work for the building No. 1 and No. 2 of this case to South E, the contract owner and five million won. The above expenses are expenses paid for the alteration, improvement, or convenience of the use of transferred assets. Thus, the plaintiff's assertion on this part is with merit.

(4) Determination as to the assertion on the construction design cost

In light of the following circumstances, Gap evidence Nos. 8 and Eul's testimony added to the purport of the entire pleadings, namely, that the plaintiff has obtained permission from the head of OO for new construction of accommodation facilities on the land Nos. 1 and 2 of this case; the plaintiff paid KRW 10 million with construction design expenses to obtain a building permit; Eul has a building permit for new construction of accommodation facilities on the land Nos. 1 and 2 of this case; and Eul appears to purchase the real estate of this case; Eul actually completed the cartel on the land Nos. 1 and 2 of this case after the construction report was made on Oct. 15, 202; and in full view of the fact that Eul completed the cartel on the land of this case after the construction report was made on Oct. 15, 2002, the plaintiff's allegation in this part is reasonable.

(5) Judgment on the assertion about the costs of a certified judicial scrivener

The Plaintiff asserts that the registration fee of a certified judicial scrivener, which was omitted from the necessary expenses at the time of preliminary return of capital gains tax, should be recognized as necessary expenses. However, it is insufficient to acknowledge only the statement of Gap evidence No. 5 submitted by the Plaintiff, and there is no other evidence to acknowledge it. Therefore, the Plaintiff’s assertion

(6) Sub-committee

Therefore, brokerage commission fee of KRW 4 million, repair cost of KRW 5 million, construction design cost of KRW 10 million is considered as necessary expenses. Therefore, this part of the plaintiff's assertion is reasonable within the scope of KRW 19 million, and 19 million should be deducted from the transfer value.

E. Determination as to the assertion that the rate of additional payment for arrears ought to be applied 3/10,000

Article 115 (2) of the former Income Tax Act (amended by Act No. 7837 of Dec. 31, 2005; hereinafter the same shall apply) provides that when the transfer income tax amount has not been paid or has been paid below the payable tax amount, the calculated tax amount shall be added by applying the rate prescribed by the Presidential Decree in consideration of the interest rate on loans by financial institutions to the unpaid tax amount. The amendment of the former Enforcement Decree of Income Tax Act (amended by Presidential Decree No. 17825 of Dec. 30, 2002) led to the reduction of the rate of additional payment on global income tax provided for in Article 146-2 and the rate of additional payment on transfer income tax provided for in Article 178 (3) from the rate of 3/10,000 per day to the rate of 5/10,000 per day (Article 1), the above amendment Enforcement Decree on transfer income tax shall enter into force from January 1, 2003 to the first taxable period (Article 13).

The delegation of the additional tax rate to the Presidential Decree of the former Income Tax Act is to determine the additional tax rate by appropriately taking into account the loan interest rate of a financial institution changing according to time and transaction circumstances. The separate provision of the Addenda of the amended Enforcement Decree prevents the taxing authority from imposing the additional tax rate depending on when and to guarantee clarity of tax imposition, and Article 4 of the Addenda does not go against the legislative intent of the former Income Tax Act or unfairly infringe on property rights. In addition, the different provision on global income tax and capital gains tax is different from global income tax and capital gains tax, because of the characteristics of the transfer income tax that the long-term unrealized income is realized at once, and it is classified to be imposed individually under a separate calculation structure, in light of the purport that Article 4 of the Addenda of the amended Enforcement Decree provides that the additional tax rate on capital gains tax shall be applied differently from the additional tax rate on global income tax without reasonable grounds.

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

(f) Calculation of legitimate capital gains tax;

If the Plaintiff calculates the capital gains tax to be paid on the basis of the above facts of recognition, the portion exceeding KRW 112,293,883 of the instant disposition is unlawful.

3. Conclusion

Then, the plaintiff's claim is justified within the scope of the above recognition and the remainder of the claim is accepted.

The dismissal is dismissed as there is no reason.