Seoul Administrative Court 201Guhap39509 ( October 18, 2013)

National Tax Service Review Income 2011-0107 (Law No. 19, 2011)

The rent of a leased apartment residing by the plaintiff shall not be deducted from the necessary expenses corresponding to the rental revenue of real estate.

(1) The rent of a rental apartment residing by the Plaintiff cannot be deemed as a usual cost that is corresponding to the revenue from the lease of real estate, and it does not constitute the cost necessary for the purchase, maintenance, and repair of an apartment, and therefore, it is difficult to deduct the rent from the necessary expenses of the revenue from the lease of real estate.

2012Nu14202 Revocation of imposition of global income tax

문▲▲

Head of the District Tax Office

Seoul Administrative Court Decision 2011Guhap39509 decided April 27, 2012

December 18, 2012

January 18, 2013

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The judgment of the first instance shall be revoked.

피고가 2011. 7. 4. 원고에 대하여 한，▲ 2006년 귀속 종합소득세▲，000원의 부과 처분 중 000원을 초과하는 부분，▲ 2007년 귀속 종합소득세 000원의 부과처분 중 000원을 초과하는 부분，▲ 2008년 귀속 종합소득세 000원의 부과처분 중 000원을 초과하는 부분을 각 취소한다.

1. Global income tax:

In full view of the overall purport of the arguments in Gap evidence 1 to 8 and Eul evidence l to 3 (including paper numbers), the following facts are recognized:

[1]

0 As between June 30, 2006 and June 29, 2008, the Plaintiff leased OOO-dong 000 (hereinafter referred to as the “instant house”) located in Gangnam-gu Seoul (OO-dong 000) to DoD, and 000 won in 2006, and 000 won in 2007, and 2008.

0 The instant house corresponds to the “high-priced house” under the Income Tax Act and its Enforcement Decree in excess of the standard market price of 000 won.

[2]

0 The Plaintiff did not report global income tax on the real estate rental income of the instant housing, and the Defendant calculated the real estate rental income amount of the instant housing by applying simple expense rate or standard expense rate to the total gross income amount as indicated below.

"0 Accordingly, the defendant, on July 4, 201, filed a request for review against the plaintiff on July 4, 201, the imposition of global income tax of KRW 000 for the year 2006, the imposition of KRW 000 for global income tax of KRW 000 for the year 2007, and the imposition of KRW 000 for global income tax of KRW 200 for the year 2008 (hereinafter referred to as "the disposition in this case"). "The plaintiff, who was dissatisfied with the disposition in this case, filed a request for review on August 2, 201, but was dismissed on September 19, 201.

2. The plaintiff's assertion

Since the Plaintiff only owned the instant house and did not have any other residence, the Plaintiff leased the instant house from HaE to lease the instant house to DoD, Gangnam-gu Seoul, OOdong 000, OOOdong 000 (hereinafter “OOdong 2000”). Therefore, in calculating the real estate rental income amount of the instant house, it should be deducted as necessary expenses when calculating the real estate rental income amount of the instant house. However, in the instant disposition, since the instant disposition did not provide the aforementioned necessary expenses deduction, the Plaintiff sought revocation of the portion exceeding the legitimate tax amount calculated by deducting the aforementioned necessary expenses among the instant disposition.

3. Determination

(a) Necessary expenses;

(1) 「소득세법」(2008. 12. 26. 법률 제9270호로 개정되기 전의 것，이하 같다)은 ▲ 제18조 제1항에서， 부동산임대소득은 부동산의 대여로 인하여 발생하는 소득 등으로 한다고 규정하였고，▲ 제18조 제3항에서， 위와 같은 대여는 임대차계약에 의하여 물건을 사용 또는 수익하게 하고 그 대가를 받는 것 등을 말한다고 규정하였다. 「소득세법」 은 또한 ▲ 제18조 제2항에서， 부동산임대소득금액은 당해연도의 총수입금액에서 이에 소요된 필요경비를 공제한 금액으로 한다고 규정하고，▲ 제27조에서，부동산임대소득금액의 계산에 있어서 필요경비에 산입할 금액은 당해연도의 총수입금액에 대응하는 비용으로서 일반적으로 용인되는 통상적인 것의 합계액으로 한다고 규정하였다.

(2)「소득세법」 제27조 제3항은 필요경비의 계산에 있어서 필요한 사항은 대통령령으로 정한다고 규정하였고，「소득세법」 시행령(2009. 2. 4. 대통령령 제21301호로 개 정되기 전의 것， 이하 같다) 제55조 제1항은 ▲ 필요경비는 다음 각 호의 것으로 한다고 규정하면서 제1호 내지 제27호를 규정하였고，▲ 그 제27호는， 제1호 내지 제26호 의 경비와 유사한 성질의 것으로서 당해 총수입금액에 대응하는 경비를 규정하였다.

(3) According to the above provisions, and the income arising from the use or profit-making of real estate under a lease agreement is real estate rental income, and in such a case, the real estate lease income is the source of income. In addition, the total amount of income is the total amount of the consideration which flows from the source of income, and the necessary expenses are the ordinary expenses required corresponding thereto in order to obtain the above total amount of income. Therefore, in case where one gets to use or profit from real estate under a lease agreement and obtains the total amount of income of real estate rental income due to receiving the said consideration, and the necessary expenses which are the ordinary expenses required corresponding thereto in order to obtain the total amount of income are the ordinary expenses required in response thereto, and are the ordinary expenses required in response to providing the said real estate in a state where one can use or benefit

(b) Rent for an OO-dong house;

(1) As seen earlier, the Plaintiff asserted that, as seen earlier, the Plaintiff leased and used the instant house from E for the purpose of leasing the instant house to NA because she only owned the instant house and did not have any other residence. The Plaintiff, as seen above, leased the instant house to DoD, and provided it to Dodddddddddddddddddddddddddddddddddddddddddds as a condition for use or profit-making of the instant house, and if the Plaintiff had resided in the instant house, then the Plaintiff moves out of the instant house for the purpose of providing the foregoing. Accordingly, the Plaintiff’s spending of the instant house for Odddddddds as it was based on a separate cause that is not directly related to the Plaintiff itself, while providing the instant house to Dodddddddddddddds as a condition for use or profit-making of the instant house. In addition, there is also a case where the lessor owns only owned the relevant house and also leased.

(2) Thus, since the Plaintiff owned only the instant house and did not have any other residence, even if HaE used to rent and rent the instant house from HaE for the purpose of leasing the instant house to DoD, the rent or rent of the instant OO-dong house is based on a separate cause without any direct connection and there is no ordinary relation, and the rent of OO-dong house does not constitute necessary expenses, which are the ordinary expenses required corresponding thereto, in order to obtain the gross income of real estate rental income from the lease of the instant house.

(3) Therefore, the Plaintiff’s assertion that the instant disposition was unlawful for not deducting the tea from the Doldong housing from the necessary expenses, and that the said tea was not deducted from the necessary expenses, is without merit.

4. Conclusion

Therefore, the plaintiff's claim seeking revocation of the part of the Disposition in this case, which exceeds the reasonable tax amount calculated by deducting the difference of the O-dong house from the necessary expenses, shall be dismissed as it is without merit, and the judgment of the court of first instance shall be just, and the plaintiff's appeal shall be dismissed,

shall be determined as above.