Cho Jae-2012- Daejeon-4341 (2013.09)

The details of expenditure asserted by the Plaintiff do not constitute capital expenditures on land.

The provisional payment for wooden works, the sales panel rent, the down payment for installation works, the provisional payment for electrical construction works, the provisional payment for waterproof construction works, the provisional payment for light steel-framed construction works, the provisional payment for the construction of the building site of this case, and the electrical safety management fees, which are the expenditure details asserted by the Plaintiff, do not constitute capital expenditures for the land, not only for the construction of the site for the building of this case, but also for the construction of the underground floor of this case.

Article 97 of the former Income Tax Act as necessary expenses

Cheongju District Court 2014Guhap125 Revocation of Disposition of Imposing Capital Gains Tax

○ ○

○ Head of tax office

July 10, 2014

August 14, 2014

1. The plaintiff's claim is dismissed.

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

The imposition of capital gains tax of KRW 112,261,90 (including additional tax) for the Plaintiff on May 1, 2012 shall be revoked.

1. Details of the disposition;

A. On October 15, 2004, the Plaintiff acquired a total of six parcels of land, including a total of 4,415 square meters of land (hereinafter “instant land”) and a total of 6 lots of land, including a total of 4,415 square meters of land (hereinafter “instant land”) and a total of 4,415 square meters of land (hereinafter “instant land”), ** 482 square meters of land 495-2, 495-2, 1,323 square meters of land for the same Ri, 495-5 and 989 square meters of land for the same Ri, 495-62 square meters of land for the same Ri, 495-12 and 808 square meters of land for the same year.

B. On August 28, 2004, the Plaintiff obtained a new construction permit for the medical facilities of the first and fourth floor above the ground (hereinafter “instant building”) on the instant land. On October 2004, the Plaintiff concluded a new construction contract for the instant building at KRW 5,100 million with the Cheongsung Construction Co.,, Ltd. (hereinafter “Masung Construction”) and the contract amount. However, on February 28, 2005, the construction was suspended due to a dispute relating to the payment of Masung Doz.

C. On March 4, 2005, △△ Construction completed the registration of creation of a neighboring mortgage with the debtor as the plaintiff and the maximum debt amount of KRW 990,000,000. On April 24, 2006, the plaintiff borrowed KRW 2.5 billion from the △△ bank as a collateral the land of this case, and then made a registration of creation of a neighboring mortgage with the debtor as the plaintiff and the maximum debt amount of KRW 3.755,00,000,000 to the △△ bank. On April 27, 2006.

D. Thereafter, the Plaintiff terminated the construction contract of the instant building that was entered into with △△△ Corporation (hereinafter “△△△△”) on April 17, 2006, and newly entered into the construction contract of the instant building with the Plaintiff at KRW 5 billion (hereinafter “△△△△△△△△△), around May 29, 2006, changed the name of the owner to △△△△△△△△△△△, and the ownership transfer claim registration as to the instant land was made in order to secure the construction cost for △△△△△△△. The △△△△△△ completed the construction of the instant building on February 9, 207.

E. Meanwhile, each of the procedures for compulsory auction regarding the instant land and buildings was initiated, and △△△ Bank acquired the ownership of the instant land on January 28, 2009. AA acquired the ownership of the instant building on April 2, 2009, and the Plaintiff did not report the transfer income tax regarding the transfer of the instant land.

F. On May 1, 2012, the Defendant: (a) deemed the acquisition value of the instant land to be KRW 87.3.6 billion, the conversion price; and (b) deemed the transfer value to be KRW 2.32,533,00,000,000,000, and notified the Plaintiff of KRW 629,263,760,000,000 for the transfer income tax for the year 2009, which reverts to the successful bid price; (c) accepted part of the Plaintiff’s objection filed on July 3, 2012; and (d) deemed the acquisition value of the instant land as KRW 1.49,00,000,000 for the actual transaction price, not for the conversion price; and (d) recognized KRW 39.48,000,000 for acquisition tax and other necessary expenses, the Defendant imposed KRW 304,743,700,000 for the transfer income tax

G. On September 28, 2012, the Plaintiff, who is dissatisfied with the Defendant’s disposition of imposition of capital gains tax, filed an application for adjudication with the Director of the Tax Tribunal on September 28, 2012, and the Director of the Tax Tribunal rendered a decision of reinvestigation on September 9, 2013. On November 30, 2012, the Defendant, as indicated in Table 1, additionally recognized necessary expenses incurred in capital expenditures on the instant land, thereby imposing KRW 233,546,106, as revised to reduce the amount of KRW 90,973,961, out of the capital gains tax for the year 2009 (hereinafter “instant disposition”).

Table 1

Date

Details of expenditure

Amount (won)

Agency of Payment

04-11-18

On-site container BOX Transfer Fee

300,000

BB

04-12-07

Fees for Safety Guidance

1,780,000

CCC

04-12-10

Costs of removing old buildings

28,000,000

DD

04-12-24

Land and construction costs

437,000,000

EE

04-12-30

Employment insurance premiums

1,649,530

FF

04-12-30

Industrial accident insurance premiums

4,776,540

GG

05-02-20

On-site personnel expenses, meal expenses;

2,750,000

H H H

05-02-28

Various Public Charges

1,880,320

III

05-02-28

Employees' benefits (eight persons);

46,761,200

05-02-28

Expenses for development of groundwater

1,827,800

JJ

05-02-28

Amount of miscellaneous steel products

2,707,530

KK

05-02-28

Costs of purchasing safety products;

522,500

LL

05-02-28

Other expenses

7,567,900

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 8, Eul evidence Nos. 1 through 5 (including various numbers for each type of evidence), the purport of the whole pleadings

2. Whether the dispositions of the instant case are legal.

A. The plaintiff's assertion

The plaintiff acquired the land of this case to newly build and operate the hospital. In order to remove the factory on the land of this case and build the building of this case, the construction was suspended due to the dispute over the construction of the new building of this case and the construction of the new building of this case. In order to secure the construction cost of 90 million won for the part of the construction of this case, the construction of the new building was conducted after the termination of the contract with △△△ after the termination of the contract with △△△, and the construction cost of the new building of this case should be recognized as the capital expenditure for the land of this case which is not the building of this case. However, the defendant recognized only the part of the above Table 1 as the capital expenditure for the building of this case, and the following attached Table 2 as the premise that the disposition of this case is unlawful.

Table 2

Date

Details of expenditure

Amount (won)

Agency of Payment

05-02-28

Loan 300 million won - Interest (interest on the Plaintiff’s borrowing of a portion of the land purchase price from △△ Construction)

7,560,000

05-01-05

Sub-Corporation’s payments

70,000,000

MM

05-01-05

reinforced concrete construction payments;

50,000,000

NN

05-01-05

Commission rental fee contract amount;

40,000,000

PPP

05-01-10

Equipment Project Costs

100,000,000

QQQ

05-01-10

Electrical Construction Provisional Payment

70,000,000

RR

05-01-15

concrete costs

5,447,380

SS

05-01-20

The provisional payment for steel bars;

30,000,000

TT

05-01-25

Non-waterproof construction payments

40,000,000

UU

05-02-20

Provisional payments for light steel framed Corporation

35,000,000

VV

05-02-28

Electrical Safety Management Fees

140,000

WW

05-03-03

Expenses for establishing the right to collateral security (the expenses related to the right to collateral security set up by the Plaintiff in Dol Construction)

4,329,300

Economic Zone

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) According to Article 97(1)2 of the former Income Tax Act (amended by Presidential Decree No. 9897 of Dec. 31, 2009) and Article 163(3) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 21301 of Feb. 4, 2009), necessary expenses to be deducted from the transfer value for the alteration, improvement or convenience of the use of transferred assets, such as capital expenses, etc., are determined by Ordinance of the Ministry of Strategy and Finance as expenses equivalent thereto. Article 79(1) of the former Enforcement Rule of the Income Tax Act (amended by Ordinance of the Ministry of Strategy and Finance of Apr. 14, 2009) delegated by the said Enforcement Decree provides for the expenses for removal of disability incurred for the convenience of land use (title 2), the expenses for construction of a new road on the relevant land for convenience of land use (title 3), and similar expenses (title 6).

Meanwhile, since the tax authority bears the burden of proving the legality of taxation, the tax authority bears the burden of proof as a matter of principle, as necessary expenses that serve as the basis of determining taxable income. However, deduction of necessary expenses is more favorable to the taxpayer, and most of the facts that form the basis of necessary expenses are located in the controlled area of the taxpayer. As such, the tax authority has difficulty in proving it, and it is reasonable to have the taxpayer prove it by taking account of difficulty in proving it or equity between the parties concerned (see, e.g., Supreme Court Decision 91Nu10909, Jul. 28, 1992).

2) With respect to the instant case, among the expenses indicated in Table 2, the interest on the instant land borrowed from △△ Construction to purchase the instant land or the expenses for establishing a mortgage established by the Plaintiff to secure the construction cost for △△ Construction cannot be deemed as the expenses for altering the purpose of use of the instant land. The instant building cannot be deemed as the capital expenses for the instant land, since the expenses incurred for improving or using the instant land cannot be deemed as the expenses for improving the purpose of use. In addition, as seen earlier, the instant building is composed of the first floor and fourth floor above the ground, and the Plaintiff’s existing factory removal construction expenses, soil construction expenses, etc., which can be deemed as the capital expenses for the instant land out of KRW 90,000,000,000,000,000 which the Plaintiff paid to △△ Construction, which are deemed as the capital expenses for the instant land as indicated in Table 1 above, are difficult to be deemed as the construction expenses for the instant land, and the construction expenses for the instant land installation of the instant land or the construction expenses for the instant construction expenses.

Therefore, it is legitimate for the Defendant to take the instant disposition by deeming that each disbursement indicated in the table 2 does not constitute capital expenditures on the instant land.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.