Suwon District Court 201Guu12239 (2012.06)

Early High Court Decision 2010J266 (No. 12, 2011)

Since the fact that the construction cost of the building and the expenses for certified judicial scrivener are recognized, it shall be recognized as acquisition value.

Since it is recognized that the construction cost has been paid by the method that the constructor directly receives lease deposit from the lessee after concluding a contract for new construction contract with the constructor and completion of the building, it is recognized that the construction cost has been paid to the certified judicial scrivener for the preservation registration of the building, the construction cost and the acquisition cost

2012Nu23244 Revocation of disposition of imposing capital gains tax

KimA

port of origin

Suwon District Court Decision 201Guhap12239 Decided July 6, 2012

March 8, 2013

March 29, 2013

1. Of the judgment of the first instance court, the part against the plaintiff falling under the order to revoke below shall be revoked.

The Defendant’s imposition disposition of capital gains tax of KRW 000 for the year 2008 against the Plaintiff on December 16, 2009, which exceeds KRW 000,000, shall be revoked.

2. The plaintiff's remaining appeal is dismissed.

3. 50% of the total costs of litigation shall be borne by the Plaintiff, and 50% by the Defendant respectively.

The judgment of the first instance shall be revoked. The part of the Defendant’s imposition disposition of capital gains tax of 000 won for the Plaintiff on December 16, 2009, which exceeds KRW 000,000, which reverts to the Plaintiff.

1. Quotation of judgment of the first instance;

Of the reasons for the decision of this court, "the reasons for the decision of this case" are the same as that of the decision of the court of first instance, and it is accepted by Article 8 (2) of the Criminal Procedure Act and Article 420 of the Civil Procedure Act (However, the "No. 12" of the decision of the court of first instance seems to be the clerical error of subparagraph 1).

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Since the Plaintiff spent construction cost of KRW 000 and KRW 000 as a certified judicial scrivener’s expenses to newly construct and preserve the instant building, it should be recognized as the acquisition value of the building in calculating transfer income tax. Furthermore, the actual acquisition value of the instant building may be recognized based on evidence submitted by the Plaintiff, and it should be recognized as necessary expenses, and the Plaintiff’s brokerage cost of the instant building and KRW 000 paid as the brokerage cost incurred at the time of transfer of the instant real estate and KRW 000 paid as the construction cost

B. Relevant statutes

Attached 1 as stated in the "relevant Acts and subordinate statutes"

C. Determination

1) Construction cost and fees for certified judicial scrivener of the instant building

According to Article 97 (1) 1 of the former Income Tax Act (amended by Act No. 9897, Dec. 31, 2009; hereinafter referred to as the "former Income Tax Act"), the acquisition value, which is necessary expenses to be deducted from the transfer value of a resident, shall be based on the actual transaction price used for acquisition, and, if it is exceptionally impossible to confirm the actual transaction price at the time of acquisition, the case price prescribed by the Presidential Decree, and the appraisal price or conversion price of the relevant asset. The actual transaction price, which is the basis for calculating the transfer income tax, means not the market price reflecting the objective exchange value, but the actual price for the benefit at the time of the transaction itself or at the time of the transaction (see Supreme Court Decision 97Nu629, Feb. 9), and the real transaction price of the building at issue, calculated by dividing the transfer price of the building at 200 and the real transaction price at 100 to 200 to 3.0 to 16.

(ii) brokerage fees;

As seen earlier, the actual acquisition value of the building of this case can be verified, and if the plaintiff used brokerage expenses for the transfer of the building of this case, it should be recognized as necessary expenses, and according to the entries in Gap evidence 16-1, 2, and 3, and the plaintiff concluded a sales contract on the building of this case with Kim E, and nextF on August 30, 2008, and paid 00 won to licensed real estate agents among them. Therefore, in calculating the transfer income tax on the real estate of this case, the above brokerage expenses should be recognized as necessary expenses (in the disposition of this case, 00 won is recognized as necessary expenses, and 00 won is recognized as estimated deduction amount for the building of this case, but the actual acquisition value of the building of this case can be verified, so the necessary expenses for the real estate of this case shall be limited to 00 won paid by the plaintiff to the brokerage expenses).

3) The cost of interior works

구 소득세법 제97조제1항제2호와 구 소득세법 시행령 저11163조제3항에 의하면 양도자산의 용도변경・개량 또는 이용편의를 위하여 지출한 비용은 거주자의 양도차익을 계산할 때 자본적 지출액으로서 필요경비로 인정하여 양도가액에서 공제할 수 있다. 그런데 갑 제18 내지 21호증(가지번호 포함)의 각 기재에 의하면， 원고가 2008. 8. 10.김QQ과 사이에 이 사건 건물의 인테리어 공사계약을 공사대금 000원 (부가가치세 포함)으로 정하여 체결한 사실이 인정되지만， 위 증거만으로는 김QQ이 시행한 공사가 이 사건 부동산의 용도변경 ・ 개량 또는 이용편의를 위하여 지출되었다고 인정하기에 부족하므로， 원고가 주장하는 인테리어 공사대금을 필요경비로 인정할 수 없다.

4) Sub-determination

If the Plaintiff deducts the construction cost of the building of this case from the transfer value of the real estate of this case, the transfer income tax amount to be paid by the Plaintiff is KRW 000, as shown in the attached Table 2, as well as the transfer value of the real estate of this case, and the part exceeding the above amount among the disposition of this case should be revoked illegally.

3. Conclusion

Therefore, the plaintiff's claim shall be accepted within the above recognized scope, and the remaining claims shall be dismissed without merit. Since the part against the plaintiff in the judgment of the court of first instance which has different conclusions is unfair, the plaintiff's appeal shall be partially accepted, and the corresponding part of the disposition in this case shall be revoked, and the plaintiff's remaining appeal shall be dismissed as it is without merit. It is so decided as per Disposition.