beta
Case Number of the previous trial
Cho-2016-west-1682 (2016.30)
Title
The propriety of the wrongful calculation disposition made by deeming that it was leased to a related corporation;
Summary
In this case, it is legitimate to regard the amount obtained by deducting management expenses from the amount of income leased to a third party, as the market price, and calculate the amount of income from the lease of land in proportion to the appraised value of the land and the building, and regard 2/3 of the amount of income as the appropriate rent for the Plaintiff’s portion of land and to regard it as the reasonable
Related statutes
Article 50 of the former Enforcement Decree of the Value-Added Tax Act, and rejection of wrongful calculation under Article 98 of the former Enforcement Decree of the Income Tax Act
Cases
Disposition to revoke imposition of value-added tax and global income tax
Plaintiff
00
Defendant
00. Tax office et al.
Conclusion of Pleadings
on October 30, 2017
Imposition of Judgment
on April 2017 04
Text
1. On January 1, 2016, the head of Defendant ○○ Tax Office’s imposition of the first half of the value-added taxx (including additional taxes) imposed on the Plaintiff on January 1, 2016 and the imposition of the tax office’s imposition of the global income taxx (including additional taxes) that belongs to the Plaintiff on January 1, 2016 and the imposition of the tax office’s global income taxx (including additional taxes) that belongs to the Plaintiff on January 1, 2016, each of which exceeds thexx.
2. The plaintiff's remaining claims against the defendants are dismissed.
3. 1/100 of the costs of lawsuit is assessed against the Defendants, and the remainder is assessed against the Plaintiff.
Purport of claim
On January 1, 2016, the head of ○○○ Tax Office’s disposition to imposexxx numbers (including additional taxes; hereinafter the same shall apply), the first value-added tax year 201, the second value-added tax year 201, the second value-added taxxx numbers, the second value-added tax year 2012, the second value-added taxxxx numbers, the second year 2013, the second year value-added taxxxxx numbers, the second year 2013, the first year value-added taxxxxxx numbers, the second year 2014, the second year value-added taxxxx numbers, the second year 20, the second year, 2014, the first year, the second year, the second year, 2015, the imposition of value-added tax on global income, each of the imposition of the second year, the second year, the second year, the second year, the second year, the second year, and the second year, the second year, the global income tax (the same).
Reasons
1. Details of the disposition;
A. On March 17, 1968, the Plaintiff: (a) on March 17, 1968, 00 Dong-dong 00-1 largex 00-1 largex 00-2 large 00-2 large 00 x x x x x x m222222; (b) on the same 00 large x x x x m222222; (c) on the above 00-1, and 20-3, and above 00-3, and above 00-3, and above 00-3, and above 2/3 shares in the building in combination of the above land and buildings; (d) on the same day, the Plaintiff’s mother and each 1/30 of the instant land and the buildings are inherited and completed the registration of ownership transfer.
B. On December 26, 200, the Plaintiff and Aa completed the registration of ownership transfer for each of the shares in the instant building (2/3 shares in Plaintiff 2/3 and A1/3 shares in each of the instant building) on the grounds of donation to C Co., Ltd. (dd Development Co., Ltd.; hereinafter referred to as “CC”), and A completed the registration of ownership transfer for 1/3 shares in the instant land on the grounds of donation from January 22, 2001 to C on January 17, 2001. The share ratio corresponding to the size of the instant land and building is as follows:
Real estate
Location
Area
Owners and Shares
Plaintiff
c
Land:
Seoul 00 Gu 00 Dong 00-1
X.x
X.x
X.x
Seoul 00 Gu 00 Dong 00-2
X.x
X.x
X.x
Seoul 00 Gu 00 Dong 00-3
X.x
X.x
X.x
Seoul 00 Gu 00 Dong 00
X.x
X.x
X.x
Sub-committees
Xxx
Xxx
X.x
Buildings
Seoul 00 00 Dong 00-1 et al.
Xxx
(not applicable)
Xxx
Seoul 00 00 Dong 00-3 et al.
X.x
(not applicable)
X.x
Sub-committees
Xxx
(not applicable)
Xxx
C. On October 1, 2015, the head of the tax office of global income and the head of the tax office having jurisdiction over global income shall conduct an integrated investigation into the Plaintiff’s individual taxes, and calculated the amount obtained by deducting the agreed management expenses from the total amount of income from the instant land and buildings that C had received from a third party, according to the appraisal value of the instant land and the appraisal value of the instant building, by calculating the market value of the instant land: (a) deeming that the Plaintiff’s two-thirds shares of the instant land are leased at low prices to c, thereby unfairly reducing the tax burden on land rental income; (b) subject to Article 29(4) of the Value-Added Tax Act; Article 62 of the Enforcement Decree of the Value-Added Tax Act; and Article 41 of the Income Tax Act; and (c) subject to the imposition disposition of the global incomex 20x 1, 2010 to the Plaintiff on January 1, 2016.
D. On April 18, 2016, the Plaintiff dissatisfied with each of the instant dispositions, filed an appeal with the Tax Tribunal on April 18, 2016, but was dismissed on June 30, 2016.
[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 5, Eul evidence No. 3 (including each number, if any) and the purport of the whole pleadings
2. Whether the instant disposition is lawful
A. The plaintiff's assertion
The Defendants regarded the amount calculated by deducting agreed management expenses from the total amount of rent received from a third party after leasing the instant land and buildings as rent for the instant land and buildings, and divided it in proportion to the appraised value of the instant land and buildings. However, since the size equivalent to approximately 2/3 of the Plaintiff’s land was leased to a third party operating a parking lot business, the above rent income falls under the “price generally transacted with a third party who is not a related party” under Article 89(1) of the Enforcement Decree of the Corporate Tax Act, and this portion of the rent income shall be calculated on the basis of the rent income actually received from a third party. ② Since the rent income of the instant land from the instant land does not exist any objective case, the disposal of the portion of the instant land to the instant land is based on Article 89(4)1 of the Enforcement Decree of the Corporate Tax Act, and thus, the amount calculated by multiplying the amount equivalent to 50/100 of the market value of the relevant land by the fixed deposit interest rate or deposit received in relation to the provision of the land, the appraisal value for the land should be calculated for 2010 years to 201.
1. Part of the parking lot;
Parking lot lease revenue ¡¿ Plaintiff’s share (2/3 shares) in the land of this case = A
2. The land annexed to the building of this case
가. 2010년〜2012년 : 이 사건 토지 감정가액 부존재, 이 사건 토지의 기준시가 적용
The standard market price of the instant land ¡¿ (the area of land annexed to the instant building / the total area of the instant land)
× 50% × 정기예금 이자율(2.9%〜4.3%) × 원고 지분(2/3 지분) = B1
나. 2013년〜2014년 : 이 사건 토지의 감정가액 존재, 이 사건 토지의 감정가액 적용
The appraisal value of the instant land 】 (Size of land annexed to the instant building / Total area of the instant land)
× 50% × 정기예금 이자율(2.9%〜4.3%) × 원고 지분(2/3 지분) = B2
C. The appropriate rent for the Plaintiff’s share = A + B1 + B2
B. Relevant statutes
It is as shown in the attached Form.
(c) Fact of recognition;
1) The Plaintiff leased 2/3 shares of the instant land to c around 2010, and c leased or sublet the instant land and buildings to c from 2010 to 2014, but removed the instant building around 2014.
2) From July 15, 200 to the end of 2012, the Plaintiff was in office as the representative director of c, and the Plaintiff was in office 23.27% from the end of 2010 to the end of 2012, and 51.42% from the end of 2013 to the end of 2014, and the share ratio of the Plaintiff, their spouse, and their children was in total 50.80% from the end of 2010 to the end of 2011, total 53.72% from the end of 2012 to the end of 201, and total 70.52% from the end of 2013 to the end of 2013.
3) The details of calculation of the rent of the instant land submitted by the Plaintiff to the tax authority are as follows.
A detailed statement of calculation of rents
○ Use : c
○ The officially announced value of the instant land as of 2014:x won
○ The Adong Building of this case
Xxx site size ¡¿x source ¡¿ 2/3 ¡¿ 50/100 ¡¿ 2.9% ¡¿ 1/12 =x won.
○ The building B of this case
Xxlocation ¡¿ 5,700,000 won ¡¿ 2/3 ¡¿ 50/100 ¡¿ 2.9% ¡¿ 1/12 =x won.
4) On the general building register of the instant building, a x site of the 1st floor, a x site of the x site, a x site of the x site of the 1st floor, a x site of the x site of the 2th to 3th floor, a x site of a rooftop, a x site of the x site of the x site of the 1st floor, a x site of the 1st floor, a x site of the 1st floor, a x site of the 1st floor, a x site of the 2st floor, a x site of the 2st floor, a x site of the 2st floor, a x site of the 3th floor, a x site of the 3rd neighborhood living facilities ( reading rooms), a x site of the x site of the 2nd floor,
5) The Defendants deemed the amount obtained by deducting management expenses from the amount of revenue leased by C to a third party from the land and building in this case as the market price, and calculated the amount of revenue from the land in this case in proportion to the amount of revenue from the land in this case and the building in this case, and then deemed 2/3 of the revenue amount as the appropriate rent for the Plaintiff’s share in the land in this case, and made each disposition in this case by wrongful calculation. The specific calculation details
- The Defendants calculated the following amount on the basis of the total amount of rent received by C from a third party, excluding the rental fee and the management fee agreed separately from the rental fee.
(unit:,000 won)
Gu Sector
The amount of his reappointment;
(Total rent received from a third party)
Necessary expenses
(Management Expenses, etc.)
500 00
Market Price
Consolidateds
X.x
X.x
X.x
2010
X.x
X.x
X.x
2011
X.x
X.x
X.x
2012
X.x
X.x
X.x
2013
X.x
X.x
X.x
2014
X.x
X.x
X.x
In addition, the Defendants calculated the appropriate rent for the land of this case in a way that the market price (re-lease price - building management fee) of the above rent is divided in proportion to the value of the land of this case and the building according to the ratio of the value of the building as follows.
- As of June 30, 2012, c requested an appraisal of the instant land and buildings to e appraisal corporation (hereinafter referred to as “e appraisal corporation”) as of June 30, 2012, and received asset revaluation. Defendant ○○ Tax Office, on September 3, 2015, requested a retroactive appraisal of the instant land and buildings to aff appraisal corporation (hereinafter referred to as “ff appraisal corporation”) as of January 1, 2015, and calculated the appraisal value.
(2) The appraisal corporation based on the appraisal value of the relevant building and the officially assessed value of the standard land as provided for in the Public Notice of Values and Appraisal of Real Estate Act was determined based on the comparison of the appraisal value of the relevant land; the appraisal corporation based on the comparison of the appraisal value of the relevant building with the appraisal value of 20 stories and the appraisal value of the relevant land; the appraisal corporation based on the comparison of the appraisal value of the relevant building with the appraisal value of 2 stories and the appraisal value of the relevant building; the appraisal corporation based on the comparison of the appraisal value of the relevant building with the appraisal value of 3 stories and the appraisal value of the relevant building; the appraisal corporation based on the comparison of the appraisal value of the relevant building with the appraisal value of 2 stories and the appraisal value of the relevant building; the appraisal value of the relevant building was determined based on the comparison of the appraisal value of 1 stories and the appraisal value of the relevant land, which is the land located in the same or similar area; the appraisal value of the relevant building, based on the comparison of the appraisal value of the relevant land with the appraisal value of 3 stories.
- The land appraisal value of the instant case
(unit:,000 won)
Gu Sector
For the purposes of January 1, 2010
(ff) An appraisal corporation;
The area per square meter;
Values
June 30, 2012
(e) An appraisal corporation;
The area per square meter;
Values
Consolidateds
X.x
X.x
00 Dong 00-1
X.x
X.x
X.x
X.x
0.Dong 00-2
X.x
X.x
X.x
X.x
0.Dong 00 00-3
X.x
X.x
X.x
X.x
00 Dong 00
X.x
X.x
X.x
X.x
- The appraised Value of the instant building
(unit:,000 won)
Gu Sector
For the purposes of January 1, 2010
(ff) An appraisal corporation;
June 30, 2012
(e) An appraisal corporation;
Consolidateds
X.x
X.x
00 00-1, 00-2
(A) The building A of this case
X.x
X.x
00 Dong 00-3, 00
(B) The building B of this case
X.x
X.x
- The appraisal value ratio of the instant land and buildings
(unit: %)
Gu Sector
2010
2011
2012
2013
2014
Total
100.00%
100.00%
100.00%
100.00%
100.00%
Land:
Xxx%
Xxx%
Xxx%
Xxx%
Xxx%
Buildings
X%
X%
X%
X%
X%
-calculated in proportion to the appraisal value at the rate of the rent for office.
(unit:,000 won)
Gu Sector
The amount of his reappointment;
(1)
Necessary expenses
(Management Expenses, 2)
Rental income subject to proportional distribution
(3=B-(1)
The land of this case
Rent
The building of this case
Rent
Total
X.x
X.x
X.x
X.x
X.x
2010
X.x
X.x
X.x
X.x
X.x
2011
X.x
X.x
X.x
X.x
X.x
2012
X.x
X.x
X.x
X.x
X.x
2013
X.x
X.x
X.x
X.x
X.x
2014
X.x
X.x
X.x
X.x
X.x
- The Defendants, as seen above, divided the value of the instant land and buildings in proportion to their holding position based on the appraisal value, calculated the reasonable rent corresponding to the 2/3 portion of the instant land owned by the Plaintiff as follows: (a) calculated the amount of rent omitted (calculated by wrongful calculation) by deducting the rent already reported by the Plaintiff; and (b) calculated the amount of rent omitted.
(unit:,000 won)
Gu Sector
Rent subject to proportional distribution
Sheet rental fees
(2/3) Land portion
(Compensation for Damages*2/3)
➄신고
Rent
➅임 대 료
Omission Report
(➃-➄)
Division of Land for Indemnification
Individual Building Apportionments
Scopeer
(Compensation for Damages + User Rights)
Consolidateds
X.x
X.x
X.x
X.x
X.x
X.x
2010
X.x
X.x
X.x
X.x
X.x
X.x
2011
X.x
X.x
X.x
X.x
X.x
X.x
2012
X.x
X.x
X.x
X.x
X.x
X.x
2013
X.x
X.x
X.x
X.x
X.x
X.x
2014
X.x
X.x
X.x
X.x
X.x
X.x
6) Around December 2007, c entered into a lease agreement with Kim Jong-type on the title of the instant land with a deposit of xx only KRW x0,00,00,000, and Kim Jong-type entered into the said lease agreement on the xx0,000,000,000,000,000,00,000,000,000,000,00,000,000,000,000,000,000
7) Prior to the destruction of the instant building, c entered into a lease agreement with respect to the instant B-dong commercial building prior to the destruction of the said building. The said agreement includes that the lessee shall pay the rent and the public management fee for commercial buildings (such as cleaning expenses, water supply charges, electricity charges, garbage collection charges, parking lot charges, etc.) on the date determined by c's notification.
8) On April 22, 2014, c entered into a lease agreement with j on the instant land between February 28, 2015 to February 27, 2022 with regard to the term of lease, deposit xxxx and monthly rent, and j newly constructed a building on the instant land at its own expense.
[Ground of recognition] Facts without dispute, Gap evidence 5, 6 evidence, Eul evidence 1, 2, 5 through 10 evidence (if any, including each number) and the purport of the whole pleadings
D. Determination
1) Whether the instant parking lot part among the instant land and the part annexed to the instant building should be separately calculated.
In full view of the following circumstances that are acknowledged as a whole by comprehensively taking account of the aforementioned facts of recognition and the overall purport of each of the evidence and arguments, it cannot be deemed that the market price of the instant land should be calculated by distinguishing the instant parking lot from the part annexed to the instant building. Therefore, the Plaintiff’s assertion on this part is rejected.
① In the calculation statement of the rent of the instant land submitted by the Plaintiff to the Defendants, as alleged by the Plaintiff, the portion calculated on the basis of the size of the parking lot part (xx site size) among the instant land was not included. Also, in the said calculation statement, the sum of the land size A and B in the instant case is xxm2 (xxm2 +xxm2). This is inconsistent with the xxm2, which appears to be the sum of the area of the land attached to the instant building (i.e., the part of the first floor of the instant building (xxm2) of the instant building + the xxxm2 in the part of the first floor of the instant building + the xxxm2 in the part of the instant building).
② The Plaintiff asserts that c should be calculated on the basis of the rent revenue received from a third party since the part corresponding to 2/3 of the instant land was leased to a third party operating the parking lot business. However, in light of the Plaintiff’s assertion that the portion corresponding to 2/3 of the instant land is xxmm2 and xxm2, the Plaintiff should be deemed to own 2/3 of the instant land as part of the entire land, and the Plaintiff cannot be deemed to have separately owned the part of the instant parking lot. The Plaintiff cannot be deemed to have separately owned the part of the instant parking lot among the instant land. The Plaintiff’s airline margin and cadastral map (No. 9) of the instant building before its destruction do not seem to have divided the instant land between the Plaintiff and c, and the area corresponding to 2/3 of the instant land is xxmm2, and the parking lot area operated on the instant land is xxm2. In light of the above, it is difficult to view that the Plaintiff’s assertion that the part corresponding to 2/3 of the instant land is the parking lot area.
2) Whether Article 89(4)1 of the Enforcement Decree of the Corporate Tax Act should apply to the calculation of the reasonable rent for the instant land
In full view of all the following circumstances acknowledged by the Defendants based on the aforementioned facts and the overall purport of arguments, it is reasonable to view that the amount calculated in proportion to the value ratio of the land and the building in this case, i.e., the amount calculated in proportion to the total amount of rent received by a third party, excluding the agreed management expenses, etc., from the total amount of rent received by the third party, is "the price generally traded between many and unspecified persons other than the related parties" under Article 89 (1) of the Enforcement Decree of the Corporate Tax Act or the third party who is not the related parties. Thus, the Plaintiff’s assertion that Article 89 (4) 1 of the Enforcement Decree of the Corporate Tax Act shall apply to the part of the land annexed to the building in this case among the land in
① Since the lease deposit, monthly rent, etc. under a lease agreement concluded with a third party who is not a specially related person is ordinarily set according to the objective exchange value for the right to use the pertinent property, such amount is relatively close to the market price. From such perspective, it is appropriate to regard the amount calculated by deducting the management expenses from the total rent for the instant land and buildings as the rent for the instant land and buildings in accordance with the lease agreement between a third party who is not in a specially related relationship with C, as stipulated by the Defendants, as the basis for calculating the rent for the instant land.
② As of January 1, 2010, there exists an appraisal value calculated by requesting aff appraisal corporation to calculate the market price of the instant land and buildings to theff, and as of June 30, 2012, there exists an appraisal value calculated by requesting the e appraisal corporation to appraise the instant land and buildings by entrusting the appraisal of the instant land and buildings to the e appraisal corporation as of June 30, 2012, and there is an appraisal value calculated by the revaluation of assets. In appraising the instant land and buildings, it is reasonable to deem that theff appraisal corporation and e appraisal corporation have assessed an adequate price in accordance with the Act on the Public Notice of Values and Appraisal of Real Estate, and there is no evidence to deem that there was an illegality in the method
③ In principle, “market price” defined as the basis for the transfer of low price subject to the denial of wrongful calculation means the objective exchange price formed through normal transactions. However, this is a concept that includes the value assessed in an objective and reasonable manner, and the reliable appraisal institution’s appraisal price may also be deemed the market price, and the value thereof does not change even if it was determined based on the retroactive appraisal (see, e certified public appraisal corporation, the point of time: June 30, 2012). In the instant land, theff appraisal corporation determined that it is possible to conduct a price assessment by using officially announced price and neighboring actual transactions and appraisal precedents as of January 1, 2010. However, in the instant building, it was destroyed or lost (e certified public appraisal corporation, the point of time of time: June 30, 2012) and the general building register, which includes the value assessed in an objective and reasonable manner, and thus, it does not change its appraisal price retroactively in light of the public confidence in the building at the time of the Internet site.
④ Therefore, in a case where, based on the appraisal value of the instant land and buildings based on the appraisal value as above, calculating the reasonable rent equivalent to the 2/3 share of the instant land, which is owned by the Plaintiff, is not classified as in the instant case, it constitutes a reasonable method to calculate the reasonable rent for the instant land.
3) Whether the market price has not been verified from January 1, 2012 to June 29, 2012
The Plaintiff asserts that the appraisal value of the instant land can be applied from the taxable year of 2013, on the ground that the appraisal result by e certified public appraisal corporation on June 30, 2012 exists with respect to the market price of the instant land, and that the market price of the instant land has not been verified from January 1, 2012 to June 29, 2012.
Then, e appraisal corporation: (a) applied the officially announced land price as of January 1, 2012; (b) calculated the starting point politics (1.00131) from January 1, 2012 to June 30, 2012 using the residential area fluctuation rate of 00 Seoul; (c) compared the regional factors and individual factors; and (d) revised the unit price determined as of June 30, 2012 with xx/m20; and (e) deemed the unit price determined as of June 30, 2012 with xx/m20; and (e) the Plaintiff’s land price as of January 1, 2012 to June 29, 2012 with 00-2 as of June 20, 2012 with 201. The Plaintiff’s land price as of June 21, 2012 as of the base point of time is different from the starting point and other factors; and (e) the land price as of this case’s price should be determined as of 201.
(iv) a reasonable tax amount;
In a lawsuit seeking revocation of taxation, the subject matter of adjudication is whether the tax base and tax amount notified by the tax authority exist objectively. In a case where the tax base and tax amount recognized by the disposition are excessive compared to the legitimate tax base and tax amount, the disposition of imposition is unlawful within the scope exceeding the reasonable tax base and tax amount (see, e.g., Supreme Court Decision 88Nu6504, Mar. 28, 1989).
In the first taxable period of 2010 to 2012, the ratio of the appraised value of the base date of January 1, 2010, and the second taxable period to 2012 to 2015, if the ratio of the appraised value of the base date of June 30, 2012 is applied, it shall be as follows:
(unit:,000 won)
Gu Sector
2010
2011
2012
2013
2014
1 1
2. 2
Total
100.00%
100.00%
100.00%
100.00%
100.00%
100.00%
Land:
Xxx%
Xxx%
Xxx%
Xxx%
Xxx%
Xxx%
Buildings
X%
X%
X%
X%
X%
X%
Therefore, the legitimate tax amount of each of the dispositions of this case is as follows.
(unit: Won)
Items of Taxation
(Defendant)
Taxation Period
This case
Each disposition tax amount
Justifiable Tax Amount
Amount of revoked tax
Value-added Tax
(Defendant ○○ Head of Tax Office)
2010
X.x
X.x
0
1, 2011
X.x
X.x
0
2011
X.x
X.x
0
1, 2012
X.x
X.x
X
2012
X.x
X.x
0
1, 2013
X.x
X.x
0
2, 2013
X.x
X.x
0
1, 2014
X.x
X.x
0
2, 2014
X.x
X.x
0
1, 2015
X.x
X.x
0
Sub-committees
X.x
X.x
X
Global Income Tax
(Defendant △ Head of Tax Office)
2010
X.x
X.x
0
2011
X.x
X.x
0
2012
X.x
X.x
X
2013
X.x
X.x
0
2014
X.x
X.x
0
Sub-committees
X.x
X.x
X.x
Total
X.x
X.x
X.x
Therefore, the part of the disposition imposing the value-added tax on Defendant ○○ Head of the tax office in 2012 exceeding the xx source among the disposition imposing the value-added tax on Defendant ○○ Head of the tax office in 2012, and the part exceeding the xx source among the disposition imposing the global income tax on Defendant △△ Head of the tax office in 2012 should be unlawful and revoked.
3. Conclusion
Therefore, the plaintiff's claim of this case is justified within the scope of the above recognition, and each of the remaining claims is dismissed as it is without merit. It is so decided as per Disposition.