Cho Jae-2016-Mining-3306 ( November 30, 2016)

The facilities of this case are subject to the transfer income tax as facilities attached to the transfer building.

It is reasonable to view the instant facilities as facilities attached to a building subject to capital gains tax pursuant to Article 94 (1) 1 of the Income Tax Act, which is deferred by increasing the objective utility of the instant building by means of water supply, heating equipment, etc. installed on the first floor of the underground floor of the building for bath business.

Article 94 of the Income Tax Act (Scope of Transfer Income)

Gwangju District Court-2017-Gu Partnership-10418 ( February 20, 2017)

Madle Madle

○ Head of tax office

2017.07.06

2017.07.20

1. The portion exceeding 31,882,770 won of the instant lawsuit shall be dismissed.

2. The plaintiff's remaining claims are dismissed.

3. One-half of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

Cheong-gu Office

The Defendant’s imposition of KRW 52,434,564 and additional tax of KRW 18,260,971 for the taxable year 2013 against the Plaintiff on June 1, 2016 shall be revoked.

1. Details of the disposition;

A. On April 6, 2011, the Plaintiff and Kim ○○ (hereinafter referred to as “Plaintiff, etc.”) sold real estate indicated in the separate sheet (hereinafter referred to as “the building part”, “land part”, “the instant real estate”, and “the instant real estate” in general name) acquired each 1/2 share from Kim △△△△ on October 30, 201, to the △△△△△△△△△△△△△△△△△△ on October 30, 201, and paid the transfer value of KRW 475,00,000, and the acquisition value of KRW 463,46,213 on December 23, 201, by voluntarily reporting the amount of KRW 542,020 calculated by taking the acquisition value as KRW 463,46,213.

B. After conducting a tax investigation with respect to the Plaintiff, etc. from March 3, 2016 to March 31, 2016, the head of the ○○ Tax Office: (a) deemed bathing facilities other than transferred assets (hereinafter “instant facilities”) as the facilities attached to the instant building; and (b) notified the Defendant of the transfer value of the instant building of KRW 1,44,00,00 [= KRW 950,000,000 (= KRW 475,000,000) + KRW 490,000,000 for the sale price of the instant facilities + KRW 490,25,00,000 for the acquisition value of the instant facilities + KRW 365,00 for the instant real estate acquisition value + KRW 475,000 for the instant real estate acquisition value + KRW 470,000 for the instant facilities + KRW 361,505,205 for each of the instant facilities’ acquisition value reverted to the Defendant.

C. On August 29, 2016, the Plaintiff dissatisfied with the instant preceding disposition, filed an appeal with the Tax Tribunal on August 29, 2016, but was dismissed on November 10, 2016.

D. On June 29, 2017 while the instant lawsuit is pending, the Defendant rendered a decision of correction to reduce ex officio the depreciation costs exceeding KRW 31,882,770 of the instant prior disposition (i.e., KRW 70,153,510 in - KRW 38,270,740 in - the disposition of imposition of capital gains tax of KRW 31,882,770 on June 29, 2017).

[Ground of recognition] Facts without dispute, Gap evidence Nos. 2, Eul evidence Nos. 1, 6, 7, 9-1, 9-2, and the purport of the whole pleadings

2. Ex officio determination

ex officio, the part of the instant lawsuit in excess of 31,882,770 won reduced by the instant disposition, and the Defendant revoked ex officio the part exceeding 31,882,770 won of the prior disposition through the instant disposition, as seen earlier. As such, among the instant lawsuit, the part of the claim for revocation corresponding thereto in the instant lawsuit is nonexistent, and thus, there is no interest in the lawsuit.

3. Judgment on the merits

A. Summary of the Plaintiff’s assertion 1

The use of facilities attached to a building referred to in Article 94 (1) 1 of the Income Tax Act;

It refers to an essential facility that is indispensable from the standpoint of the whole building as an object of objective convenience. However, since the instant facility is a facility for bath business operated on the third, fourth and fifth floors of the instant building at any time and can be used for other purposes, it does not cause objective convenience to the use of the instant building. Therefore, the Defendant’s deeming the instant facility as a facility attached to the building and included in the transfer value of the instant building is unlawful.

1) The Plaintiff asserted that the calculation of depreciation costs of the preceding disposition was erroneous in the instant lawsuit. However, the Defendant accepted the Plaintiff’s assertion and rendered the instant disposition after recalculationing the depreciation costs on June 29, 2017, and thus, did not determine otherwise.

/ Income Tax Act

Article 94 (Scope of Transfer Income)

(1) Capital gains shall be the following incomes, generated in the relevant taxable period:

1. Income generated from transfer of land (referring to land category subject to registration in the cadastral record under the Act on the Establishment, Management, etc. of Spatial Data) or a building (including facilities and structures annexed to a building);

.

B. Relevant statutes

(c) Fact of recognition;

1) Acquisition of the instant building

On April 6, 2011, 201, the instant real estate from Kim △△△△△, KRW 950,000,000, private history

After purchasing 305,00,000 won and completing registration of 1/2 shares, real estate rental business has been operated.

2) Transfer of the instant building

On October 30, 2013, the Plaintiff sold the instant real estate to △△△△△△△△ for KRW 1,444,00,000.

On the other hand, the value of the instant building was divided into KRW 950,000,000, and the value of the instant building was divided into KRW 490,000,000 as a special agreement.

3) The use of the instant building

The building of this case is a neighborhood living facility built of reinforced concrete structure sloping roof, and January 1, 1996

5. The first underground floor was used for resting restaurants, boilers, general restaurants, first floor retail stores for daily goods, second floor health clubs for the second floor and third, fourth and fifth floor for bathing, and the third and third floor of the building in this case until now;

In the fourth and fifth floors, bathing rooms are operated.

4) The status of installation and use of the instant facilities

The instant facilities include boiler, bathing automatic control panel, water tank, water tank, dried pumps, brord pumps, water purifiers (training equipment), drainage pumps, underground water pumps, pipes, etc., and the interior walls of the instant building; and

The first floor of the building of this case is firmly attached to the underground floor of this case, and the third, fourth and fifth floor of the building of this case.

It is directly necessary to carry out bathing business in operation in the public bath business.

5) Preparation of a certificate of △△;

The husband of △△△△ that purchased the instant building from March 10, 2016.

The Defendant entered into a contract with the knowledge that the instant real estate was purchased at KRW 1.44 billion, and that the Plaintiff entered into a contract with the knowledge that the instant real estate was purchased at KRW 490 million, land and building KRW 900,000,000,000,000,000 and KRW 950,000,000,00,000,000,000,000,000,000,000,000,000,000,000,000,000,00

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 4-1, 4-2, 5, 7, Eul evidence Nos. 2 and 4, the purport of the whole pleadings

D. Whether the facilities of this case are annexed to the building of this case

The following circumstances that can be recognized through the facts recognized and the purport of the entire pleading:

① In other words, the third, fourth and fifth floors of the instant building obtained a building permit for the purpose of bath bath, and the public bath up to now.

(3) The building of this case is designed and manufactured for bath business, and is firmly attached to the interior walls or floors of the building of this case, and if it is separated from the building of this case, it would be likely that the object of the right can be lost because of no economic value. (4) The building of this case was traded together with the building of this case when it was sold to △△△△△△△, as well as when it was sold to 00 in light of the real estate transaction practice, it is extremely exceptional to sell it separately from 00 in light of the above 0th floor of the building of this case, ⑤ △△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△0 in selling the building of this case, it would have been more interested in the total purchase price of the building of this case, and it would not have agreed separately with the plaintiff about the value and scope of the building of this case as 00th in addition to the sale price of the building of this case.

4. Conclusion

Therefore, the portion exceeding KRW 31,882,770 of the instant lawsuit is unlawful and dismissed. The remainder of the Plaintiff’s claim is dismissed as it is without merit. One-half of the costs of lawsuit is the Plaintiff, and the remainder is to be borne by the Defendant in accordance with Article 32 of the Administrative Litigation Act.