2011B0838

If the real estate sales businessman acquired other real estate with another person's loan and bears interest, the loan interest shall be deducted as necessary expenses.

If a real estate sales businessman uses a loan in the name of another person as a fund for purchasing fixed assets and redeems the loan interest, it shall be deducted as necessary expenses, and if the purchaser has made a revised return of transfer income tax pursuant to the revised sales contract by falsely reporting the acquisition cost while selling and selling real estate again, the amount of income of the revised sales contract shall be deemed

Article 27 of the Income Tax Act

2012Guhap4007 Global income and revocation of disposition

AAA

Head of Busan District Tax Office

June 11, 2014

August 13, 2014

1. The Defendant’s disposition of imposition of the global income tax OO (including additional tax) on January 3, 201 by the Plaintiff on January 3, 201, exceeding the OOO won, shall be revoked.

2. The plaintiff's remaining claims are dismissed.

3. Of the costs of lawsuit, 2/3 shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

Cheong-gu Office

"The part of the disposition that the Defendant imposed on the Plaintiff on December 28, 2010 (see, e.g., Supreme Court Decision 2001Do329, Jan. 3, 2011) exceeding the OOO won in the disposition of global income tax 2005 is revoked," and the reasons therefor are as follows.

1. Details of the disposition;

A. On July 5, 2002, the Plaintiff, jointly with LB and CCC, purchased 775,321 square meters in total from nine parcels of O-Ri, including O-Gun O-type O-type O-type O-type O-type O-type O-type O-type O-type O-type O-type O-type O-type 19,751 square meters. On April 15, 2003, the Plaintiff agreed between the joint buyers and the joint buyers to purchase 75,321 square meters in total, and one third share out of 484,283 square meters in O-type 181 forest land and O-type 19,751 square meters in O-type O-type 165-1 forest land and 18,545 square meters in O-type O-type 180-1 forest land and 637 square meters in total.

B. In around 2005, the Plaintiff: (a) divided the land that he/she was owned by himself/herself; (b) sold the following (hereinafter referred to as “transfer land in 2005”) land (only the parcel number shall be stated with the land of MobO Ri, and the year shall be omitted and only the month shall be entered); and (b) did not file a comprehensive income tax return. Accordingly, the Defendant investigated the tax offense against the Plaintiff from October 25, 201 to December 22, 2010; (b) conducted an investigation into the tax offense against the Plaintiff; and (c) obtained the results that the Plaintiff sold the land as set forth below; and (d) omitted [Attachment]

C. On January 3, 2011, based on the above findings, the Defendant: (a) calculated the tax base of the global income tax; (b) calculated the global income tax; (c) calculated the global income tax; (d) calculated the additional additional tax; (c) calculated the additional additional tax; (d) calculated the additional additional tax; (e) calculated the additional additional tax; (e) calculated the additional tax; (e) calculated the additional tax; (e) calculated the additional tax; and (e) calculated the additional tax; and (e) calculated the additional tax; and (e) calculated the additional tax; and (e) notified the remainder of the additional tax paid after deducting the total amount of the pre-paid tax, as global income tax in 2005.

D. On February 22, 2011, the Plaintiff filed an appeal with the Tax Tribunal on February 22, 201. On June 27, 2012, the Tax Tribunal imposed an additional tax on DD (Account Number O-O-O-O-OO-O-O-O-OOOOOO-OO-OO-O-O-O-O-O-O-O-O-O-O) loans in the name of either of the two members of the Plaintiff and each of the members of the EE Banks (Account Number O-O-O-O-O-O-O-O-O-O-O-OO-O-O-O-O-O-O-O-O-O-O-O-O-O) and decided to additionally include O-O-O-O-O-O(hereinafter referred to as "Plaintiff's loans") and corrected the tax base and tax amount. (e) On July 5, 2012, the Defendant calculated the tax base as O-O-20 or 2000.

2. Whether the disposition is lawful;

A. The plaintiff's assertion

(i) include the addition of brokerage commission in necessary expenses;

“The Plaintiff: (a) requested sale to KimF of the land (including a branch number) Nos. 1 through 5 out of the transferred land in 2005 to the Plaintiff; (b) the Plaintiff acquired only OOOOOOOO members per square day, and the remainder shall be KimF consulting and brokerage commission; (c) the remainder excluding OOOOO members paid to the Plaintiff from Nos. 1 through 5 for the total sale price of land (2,895 x normal x OOO members) is all brokerage commission. Of these, the remainder OOOOO members (hereinafter “instant brokerage commission”) except those already recognized as having been paid to KimF should be reflected in necessary expenses as brokerage commission paid to HG, HH and Kim II; and (d) interest on loans in the name of the largestB.

“The Plaintiff obtained a total amount of OO's loan in the name of the largest BB in 2002 and used it to acquire the land for business, and paid the interest on behalf of the Plaintiff. As such, the total sum of the interest on the loan from 2002 to 2005 (hereinafter referred to as the “interest paid in this case”) should also be reflected in necessary expenses.”

Since the transfer value of the land (including the branch number) No. 6 from among the transferred land in 2005 transferred to YellowP is not an OOO but an OOO won, the difference in the transfer value shall not be included in the total amount of income.

4) An error in calculation of additional tax

There is a possibility that additional tax has been mistakenly assessed.

(b) Related statutes;

Attached Form is as shown in the attached Form.

C. Determination

1) As to the instant brokerage commission

In light of the following circumstances acknowledged by the evidence and the overall purport of the evidence and arguments adopted earlier, the Plaintiff did not directly know about the sale of the land, i.e., the fact that the purchaser of the land transferred in 2005 made a statement with KimF and traded with the Plaintiff, without mentioning the fact that it was registered in the National Tax Service’s business related to real estate consulting in around 2005, and that the Plaintiff did not receive any receipts from the Plaintiff in light of the fact that: (a) there was no other evidence verification or the address of the receiver, the issue date; and (b) there was no fact that the Plaintiff delegated the sale of the land; (c) there was no fact that the purchaser of the land transferred in 2005 stated that the purchaser of the land was traded with KimF; and (d) there was no fact that the Plaintiff and the Plaintiff did not receive any other evidence from the Plaintiff in the process of the tax investigation; and (d) there was no other evidence that the Plaintiff did not receive any receipts from the Plaintiff in the process of the tax investigation.

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

2) As to the interest paid in the instant case

"A) In a case where the calculation of global income tax on a real estate sales businessman is based on the global income tax system, the land and buildings for sales of the real estate sales businessman do not constitute fixed assets for business, and thus, Article 33 subparag. 10 of the former Income Tax Act (amended by Act No. 8144 of Dec. 30, 2006; hereinafter the same shall apply) and Article 75(1) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 19327 of Feb. 9, 2006) excludes the construction funds from the calculation of interest. Thus, even if the interest paid on loans required for the purchase and construction of the land was determined after the date of full payment of the land price or the completion of the building, it shall be deducted from the sales price as necessary expenses (see, e.g., Supreme Court Decision 200Du10724, Apr. 25, 2003).

① 5 OJ 200,000,000 won for 20,000 OJ 20,000 won for 20,000 won for 20,000 won for 20,000 won for 20,000 won for 20,000 won for 20,000 won for 20,000 won for 20,000 won for 20,000 won for 20,000 won for 20,000 won for 20,000,000 won for 20,000,000 won for 20,000 won for 20,000,000 won for 20,000 won for 20,000 won for 20,000 won for 20,000 won for 20,000 won for 20,000 won for 3,000.

7) On May 9, 2008, the Plaintiff sold the Plaintiff’s land to N Co., Ltd. for the purpose of OO on May 9, 2008, and completed the registration of ownership transfer on May 22, 2008. The Plaintiff’s land loan loan was repaid on August 14, 2009, and the right to collateral security of J branch’s land for the Plaintiff’s land was cancelled on the same day.

In full view of the above facts, it is reasonable to view that the OOOB was used as the purchase fund of the OO land prior to the division by the Plaintiff. Since the Plaintiff actually bears the interest on the 2005 interest on the OOB loan, OOOB incurred in the year 2005 from the interest on the 2005 interest on the OB loan is the corresponding cost to the total amount of income among the current interest on the debt incurred directly in order to obtain the total amount of income of the Plaintiff’s business, which is the Plaintiff’s business, during the same period. Therefore, this amount should be deducted from the business income as necessary expenses. (B) Accordingly, the Defendant asserts that the amount of the interest on the OB loan from the 2005 interest on the OOB loan from the 2002 to 2005 due to the erroneous decision of the Tax Tribunal as seen earlier, it is not necessary expenses that the 2000 OBB loan from the 2005 to the 20400000s.

In light of the purport of the relevant provisions, such as Articles 55(1) and (3), 65, 80, and 81 of the Framework Act on National Taxes, in a case where the tax authority recognized the grounds for objection in the course of appeal procedures regarding a tax disposition as justifiable, and accordingly made necessary disposition, the tax authority may not reverse the same matter without any special reason, and may not reverse the previous disposition again (see, e.g., Supreme Court Decision 2009Du1020, Sept. 30, 2010).

In this case, the Health Board and the Tax Tribunal rendered a decision that all of the Plaintiff loans OOOO members should be additionally included in the necessary expenses and the tax base and tax amount should be corrected. The fact that the Defendant, according to the purport of the above decision, deducted all of them as necessary expenses and deducted income tax from the income tax to the disposal of this case is reached.

Examining these circumstances in light of the legal principles as seen earlier, the Defendant’s assertion that the above correction was erroneous in the instant case, and thus, cannot be reversed, and the Defendant’s assertion on the legitimacy of the tax disposition before reduction cannot be accepted.

C) Therefore, this part of the Plaintiff’s assertion is justified within the scope of the occurrence of the year 2005, among the interest accrued on the Plaintiff’s land-backed loan funds, and the remainder is without merit.

3) As to the land value transferred to the Yellow PP

살치건대, 갑 제7호증의 16, 갑 제11호증의 1, 2, 갑 제30호증의 1, 2의 각 기재, 증인 황PP의 증언 및 변론 전체의 취지를 종합하면, 원고는 유QQ을 통해 황PP에게 2005년 양도토지 중 순번 6-1, 6-2 토지인 OO도 OO군 OO면 OO리 130-25, 같은 리 130-26의 각 토지를 전매한 사실, 당시 원고는 유QQ에 대한 채무금 OOOO원을 면제받기로 한 사실, 한편 황PP은 처음에 유QQ으로부터 위 토지를 OOOO원에 매수할 것을 제안받았으나 결국 매수대금을 OOOO원으로 정하여 위 토지를 매수하였으면서도 양도소득세 납부의무를 면하기 위해 매매가액이 OOOO원으로 기재된 계약서를 첨부하여 신고하였다가, 후에 원고와 유QQ의 항의를 받고 새로이 매매대금을 OOOO원으로 기재한 계약서를 작성하여 2009. 10. 29. 수정신고를 하고 이에 따라 양도차익에 대한 양도소득세 OOOO원, 주민세 OOOO원 등을 납부한 사실을 인정할 수 있다.

According to the above facts, since the transfer value of the above land and the plaintiff's revenue therefrom shall be the OOO won, the difference between the original defendant's revenue amount and the OOO won shall be excluded from the total income amount. The plaintiff's allegation in this part is with merit.

4) As to additional tax

Of the disposition of this case, the penalty tax portion is limited to the portion that is deemed as necessary expenses and the amount that is additionally reduced as follows according to the portion that is excluded from the total amount of income among the value of the land transferred to Yellow PP, and the portion that is to be additionally reduced [the amount equivalent to the amount equivalent to the OOO (=the amount equivalent to the additional tax for failure to report + the additional tax for failure to report + the additional tax for failure to pay] but there is no specific assertion or proof as to the remaining portion, such as the error in the calculation of additional tax, and there is no other evidence to deem that the additional tax was calculated differently. Accordingly, this part of the claim is with merit within the scope of the above recognition.

5) As to whether the instant disposition is unlawful

The result of the fair calculation of the income tax in 2005 by taking full account of all the circumstances mentioned above is as follows:

[Attachment] Omission

Therefore, as seen in the above table, the part exceeding the total amount of tax (including additional tax) of the disposition in this case is illegal since it is calculated and imposed mistakenly and necessary expenses.

3. Conclusion

Therefore, the plaintiff's claim is reasonable within the above scope of recognition, and the remaining claims are dismissed as it is without merit. It is so decided as per Disposition.