Early High Court Decision 2014J3655 ( December 30, 2014)

It constitutes the introduction fee under Article 163 (5) 1 (c) of the Enforcement Decree of the Income Tax Act with the payment of service fees of the nature of the sales agency fee to the sales agency.

The sales promotion fee paid to the sales staff is the introduction fee spent directly for the transfer of land as the expenses inevitably required for the operation of real estate sales business, and thus the amount of tax on profit margin on land should be deducted as necessary expenses in calculating the amount of tax.

Article 97 of the Income Tax Act (Special Cases concerning Calculation of Tax Amount for Real Estate Broker)

Suwon District Court 2015Guhap500 global income and revocation of disposition

o

o Head of the tax office

October 29, 2015

January 14, 2016

1. On February 1, 2014, the Defendant revoked each disposition of imposition of global income tax of 111,11,11, 222,222, global income tax of 209, global income tax of 2009, global income tax of 3,333,333, global income tax of 2010, global income tax of 44,44,444, global income tax of 201, global income tax of 55,55,555, and global income tax of 2012 reverted to the Plaintiff.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Details of the disposition;

가. 원고는 서울 강남구 $$동 6$$-13 $$빌딩 3층을 사업장으로 하여gggg이라는 상호로 부동산매매업을 하는 사람이다.

B. The Plaintiff sold real estate in this State as set forth in Table 1 [Attachment 1] from the business year of 2008 to the business year of 2012.

[Attachment 1]

다. 원고는 2008년 귀속 사업연도 수입금액 %,%%%,%%%,000원, 필요경비 &,&&&,&&&,&&&원(판매촉진비 ###,###,###원 포함)으로, 2009년 귀속 사업연도 수입금액 3,###,###,###원, 필요경비@,@@@,@@@,@@@원(판매촉진비 ***,***,***원 포함), 2010년 귀속 사업연도 수입금액 +,+++,+++,+++원, 필요경비 ^^^,^^^,^^^,^^^원(판매촉진비 ~,~~~,~~~,~~~원 포함)으로, 2011년 귀속 사업연도 수입금액 @,@@@,@@@,###원, 필요경비 #,###,###,@@@원(판매촉진비 #,###,$$$,###원 포함), 2012년도 귀속 사업연도 수입금액 $,$$$,###,###원, 필요경비 %,$$$,$$$,$$$,원(판매촉진비 @,$$$,$$$,$$$원 포함)으로 하여 각 신고하였다.

D. The defendant paid sales promotion expenses to the sales staff pursuant to the service entrustment agreement by the plaintiff.

In the calculation of profit margin on housing and other profit margin, the sales promotion fund is not deducted as necessary expenses, but the comprehensive income tax was revised and notified again by calculating the tax base and calculated tax amount as shown below (hereinafter referred to as the "disposition in this case").

[Attachment 2]

E. The Plaintiff appealed and filed a request for a trial. However, the Tax Tribunal on December 30, 2014

The dismissal was dismissed.

[Ground of recognition] Facts without dispute, entry of Gap evidence 1 through 7 (including branch numbers for those with additional numbers; hereinafter the same shall apply) and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

According to Article 97 (1) 3 of the Income Tax Act and Article 163 (5) 1 (c) of the Enforcement Decree of the same Act, the amount of notarized expenses, stamp fees, and brokerage expenses directly paid for the transfer of real estate, etc. constitutes necessary expenses deducted from the transfer value when calculating gains on transfer. The Plaintiff’s sales promotion expenses paid to the sales employees while conducting real estate sales business also constitutes brokerage expenses disbursed to attract many and unspecified persons and transfer real estate, but the Defendant’s disposition of this case, which calculated capital gains without deduction, is unlawful.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

1) Whether a sales promotion fee constitutes necessary expenses as a sales promotion fee

Article 64 of the former Income Tax Act (amended by Act No. 12852, Dec. 23, 2014; hereinafter the same) and Article 122(2) of the Enforcement Decree of the Income Tax Act provide that real estate sales profits of a real estate sales businessman shall be the value obtained by subtracting necessary expenses of transferred assets and basic deduction of capital gains from the sales price of the relevant land under the provisions of Article 163(1) through (5) of the Enforcement Decree of the Income Tax Act. Article 163(5)1 of the Enforcement Decree of the Income Tax Act provides that securities transaction tax paid directly for the transfer of assets under the Securities Transaction Tax Act, expenses for filing a return of tax base of capital gains tax and contract, notarized expenses, stamp

Since Article 165 (5) 1 (c) of the Enforcement Decree of the Income Tax Act uses the term "in lieu of "retailment fee", expenses other than money paid to licensed real estate agents may be deducted as an introduction fee. In the case of real estate brokers, sales promotion activities may be necessary for multiple transfer transactions, and sales employees may explain the location and conditions of land and induce purchase, so this may be considered as expenses actually paid for real estate transfer. Thus, the portion of sales promotion expenses spent as above can be considered as expenses. Although the sales promotion expenses cannot be considered as income of real estate brokers, the portion of sales promotion expenses not deducted as necessary expenses cannot be considered as income. Thus, since sales promotion expenses after concluding an entrustment contract shall be deemed as an independent business operator from the real estate brokers, since the sales promotion expenses paid to unspecified persons should be deemed as expenses for sales promotion activities such as explaining the location and development conditions of land subject to sale, development possibility, purchase conditions, etc., and sales promotion profits, etc., and then, the sales promotion expenses paid to them should be deemed as 14 (2) 10 (a) and 4).

2) In the instant case:

A) the burden of proving the tax base that is the basis of taxation in a lawsuit seeking revocation of the global income tax disposition;

The tax authority shall be the tax authority, and the tax base shall be the burden of proof of income and necessary expenses, as it deducts necessary expenses from income, in principle, the tax authority shall bear the burden of proof of income and necessary expenses. However, since necessary expenses are more favorable to the taxpayer, and most of the facts generating necessary expenses are located within the territory under the control of the taxpayer and thus the tax authority is difficult to prove. Thus, if it is reasonable to prove the taxpayer by taking into account difficulty in proof or equity between the parties, it accords with the concept of fairness to recognize the necessity of proof for the taxpayer (see, e.g., Supreme Court Decision 2006Du16137, Oct. 26

이 사건의 경우에도 원고가 판매직원들에게 지급하였다고 주장하는 판매촉진비는 경기도 부동산 중개보수 등에 관한 조례에서 정한 중개보수를 현저히 넘는 것으로 통상적인 필요경비로 보기는 어려워 필요경비의 발생 여부 및 금액에 대한 입증책임은 원고에게 있는 것으로 보이므로, 원고가 [표 1] 기재 부동산을 판매하기 위한 필요경비로서 판매촉진비를 지급하였다는 점을 인정할 수 있는지에 관해 살피건대, 갑 제4, 5, 8, 10 내지 13, 16 내지 20호증, 을 제3 내지 99호증의 각 기재, 증인 김대성, 김현미의 각 증언에 변론 전체의 취지를 종합하면, ① 원고는 여주시와 이천시 일대의 부동산을 매도하기 위하여 판매직원들과 위촉계약서를 작성한 후 위 부동산을 판매하고, 판매직원들에게 판매촉진비로 2008년 111,111,111원, 2009년 222,222,222원, 2010년 3,333,333,333원, 2011년 4,444,444,444원, 2012년 5,555,555,555원을 지급한 사실, ②원고는 2008년부터 2012년까지 위 판매촉진비에 대한 판매직원들의 사업소득세를 원천징수하여 납부한 사실, ③ 판매직원들은 서울 강남구 $$$동 $$$-23 소재 분양사무실에서 지인이나 전화번호부 등을 통해 전화번호를 파악한 다수의 사람들에게 전화를 걸어 판매대상인 토지들의 입지와 향후 개발가능성 및 매매조건 등을 설명하여 매수를 유도하고, 관심을 보이는 고객들과 직접 만나 팀장 등과 같이 현장을 방문하여 설명하는 방법으로 영업을 한 사실, ④ 판매대행업무는 그 구성원이 5~8명인 5개 팀으로 나누어 이루어졌는데, 판매직원들이 위 토지를 분양하여 매출이 발생하면 위촉계약의 내용에 따라 그 판매대금의 일정 비율이 판매촉진비로 판매직원에게 지급되고, 팀장과 본부장도 일정 비율의 금원을 지급받은 사실, ⑤ 피고의 직원은 2013. 12. 2.부터 2013. 12. 20.까지 19일간 원고와 그의 남편인 GGG에 대하여 세무조사를 하였는데, 원고가 판매직원들과 위촉계약을 체결하여 판매대행업무를 맡긴 사실과 판매직원들에 게 판매촉진비를 지급한 사실은 인정하면서도 판매촉진비가 관련 법령에서 정한 소개

It is recognized that it has not been deducted as a necessary expense on the ground that it is not a secret.

According to the above facts, the sales promotion fee that the plaintiff paid to sales personnel is real estate.

Since the cost inevitably incurred in conducting the sales business is the introduction cost directly disbursed for the transfer of land, the amount of tax on profit margin on land should be deducted as necessary expenses in calculating the amount of tax on profit margin, and the head of the team and the head of the headquarters who did not sell the land can be deemed to have contributed to the sales promotion through the formation of the team members and the encouragement of activities, the sales promotion cost paid to them

B) The Defendant sold real estate owned by GGG, its husband, to sales promotion expenses paid by the Plaintiff.

Although it is argued to the effect that the sales promotion fee paid for sale includes overlapping, there is no evidence to acknowledge it, and each disbursement resolution and receipt submitted by the Plaintiff are specified, and since the real estate owned by the GG appears to have been sold only in the around 2012, it is not likely that the sales promotion fee will overlap, the above argument by the Defendant is without merit.

3. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is decided as per Disposition by admitting it.

Relevant statutes

(1) The former Income Tax Act (Amended by Act No. 12852, Dec. 23, 2014)

Article 64 (Special Cases concerning Calculation of Tax Amount for Real Estate Broker)

(1) The calculated global income tax on a resident operating real estate sales business prescribed by Presidential Decree (hereinafter referred to as "real estate sales businessman") who has profit margin from trading houses or land falling under any of Article 104 (1) 4 through 8 and 10 (hereafter referred to as "profit margin from trading houses, etc." in this Article) on the global income shall be the larger of the following amount of tax:

1. The calculated global income tax;

2. The total amount of taxes under the following items:

(a) The total amount of tax calculated by applying tax rates under Article 104 to gains from trading houses, etc.;

(b) The tax base shall be the amount obtained by deducting the total amount of gains from trading housing, etc. from the tax base of global income, and the tax amount calculated by applying the tax rate under

(2) Matters necessary for the calculation of gains from trading houses, etc. and calculated tax on other global income on a real estate sales businessman shall be prescribed by Presidential Decree.

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 a lot of land subject to registration of land category in the cadastral record under the Act on the Establishment, Management, etc. of Spatial Data) or buildings (including facilities and structures attached to such buildings);

Article 97 (Calculation of Necessary Expenses in Transfer Income)

(1) Necessary expenses to be deducted from the transfer value when calculating gains on transfer of a resident shall be as follows:

1. Acquisition value:

(a) The actual transaction price incurred in the acquisition of assets under subparagraphs of Article 94 (1): Provided, That in cases falling under the part other than subparagraphs of Article 96 (2), the standard market price at the time of such acquisition;

(b) In cases falling under the main sentence of item (a), where it is impossible to confirm the actual transaction value at the time of acquisition, the transaction example value, appraisal value or conversion value

2. Capital expenses, etc. prescribed by Presidential Decree;

3. Transfer expenses, etc. prescribed by Presidential Decree.

【Enforcement Decree of the Income Tax Act

Article 122 (Special Cases in Calculation of Tax Amount for Real Estate Broker)

(2) The gains from trading housing, etc. under Article 64 (1) of the Act shall be the amount calculated by subtracting the following amounts from the sales price of the relevant housing or land:

1. Necessary expenses of the transferred property calculated pursuant to the provisions of Article 163 (1) through (5);

2. Basic deduction amount of transfer income under the provisions of Article 103 of the Act.

Article 163 (Necessary Expenses for Transferred Assets)

(5) "Those prescribed by Presidential Decree" in Article 97 (1) 3 of the Act means any of the following:

1. Expenses under the following items, which are directly paid for transfer of assets under the subparagraphs of Article 94 (1) of the Act:

(a) Securities transaction tax paid pursuant to the Securities Transaction Tax Act;

(b) Expenses for preparing a return of tax base of capital gains tax and contract preparation;

(c) Notarial fees, stamp charges, and brokerage;

(d) Expenses prescribed by Ordinance of the Ministry of Strategy and Finance, similar to those under items (a) through (c).