Seoul Administrative Court 2008Gudan18024 ( October 15, 2009)

Cho High Court Decision 2008west0789 (No. 25, 2008)

Whether it constitutes necessary expenses deducted from the transfer value

It is difficult to recognize only the evidence submitted despite the fact that the cost of remodeling, testing, or consulting was paid as necessary expenses deductible from the transfer value;

The contents of the decision shall be the same as attached.

○ ○

Head of Seodaemun Tax Office

1. The plaintiff's appeal is dismissed.

2. Costs of appeal shall be borne by the Plaintiff.

Purport of claim and appeal

The judgment of the first instance is revoked, and the defendant revoked the disposition of imposition of capital gains tax of KRW 714,601,270 on December 3, 2007 against the plaintiff on December 3, 2007.

1. Circumstances of the disposition;

The following facts are not disputed between the parties, or may be acknowledged by considering the whole purport of the pleadings in each entry in Gap evidence 1, Eul evidence 1-1, 2, and Eul evidence 2.

A. On August 25, 2005, the Plaintiff transferred a site and building owned by ○○○○○○-dong 831-17 site and building (hereinafter referred to as “instant real estate”) to the Plaintiff by concluding a contract for exchange with ○○○○-dong 143-20 site and building owned by the Plaintiff.

B. In relation to the transfer of the instant real estate, the Plaintiff reported and paid the transfer income tax calculated by regarding the transfer value as KRW 900 million, KRW 538 million, KRW 28,122,370 as necessary expenses (capital expenditure amounting to KRW 1.55 million, acquisition tax amounting to KRW 378,122,370, and KRW 200 million).

C. As to this, the Defendant denied the capital expenditure of KRW 1.55 billion and the transfer expense of KRW 200 million from necessary expenses. On December 3, 2007, the Defendant issued a disposition to correct and notify the Plaintiff of capital gains tax of KRW 714,601,270 for the year 2005 (hereinafter “instant disposition”).

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

A. The plaintiff's principal

The Plaintiff spent KRW 1.55 billion for the purpose of the alteration, improvement, or convenience of the use of the instant real estate, such as rebuilding, remodeling, and interior (capital expenditure). The Plaintiff paid KRW 200 million to the largestB at the consulting cost for the sale of the instant real estate (transfer expenditure). Although both the capital expenditure and transfer expenses constituted necessary expenses, the instant disposition without recognizing them as necessary expenses is unlawful.

B. Determination

(1) The burden of proving the legality of taxation, including the transfer income tax base, is imposed on the tax authority, and the tax base is deducted from the transfer value, so the burden of proving necessary expenses is also imposed on the tax authority as a matter of principle. However, the costs of rebuilding, remodeling, testing, and consulting on the real estate of this case claimed by the Plaintiff are favorable to the Plaintiff in calculating the transfer income tax, and the basic facts are within the scope of the Plaintiff’s control, so it is difficult for the Defendant as the customs authority to investigate, while it is difficult for the Plaintiff to prove, the necessary expenses such as the above are consistent with the principle of fairness.

(2) With respect to this case, evidence Nos. 2 through 5, evidence Nos. 6-1, 3, evidence Nos. 7-1, 4 through 10, A, 8, 9, 10, 12-14, evidence Nos. 1-3 through 5, witness Nos. 1-3 through 5, witness Nos. 1-2, and OrCC’s testimony No. 3, 7, Nos. 3, 4, 5-1 through 8, 8, 9, and 9 are considered as a whole in light of the following circumstances, which are acknowledged as being based on the whole purport of pleading No. 1-1, 6, 7, 3, 4, and 5-1 through 8, 8, and 9, the plaintiff’s above assertion is rejected.

(A) From September 1, 2002 to March 28, 2003, the Plaintiff spent KRW 800 million for outside remodeling, heating, cooling and structure construction of the instant real estate. The Plaintiff spent KRW 750 million for interior interior interior interior interior interior interior interior interior interior interior interior interior interior interior interior interior interior culping, 1,200,000,000. However, there was no particular change in the sales of the tenants occupying the instant real estate during the said construction period, and the indoor culping Corporation is ordinarily for the installation of facilities necessary for their own business, and it seems that there is no special reason for the Plaintiff to make a large investment in the said large amount.

(B) When the Plaintiff first concluded the construction contract with the UDR, it was submitted the receipt for the construction cost under the name of UDR, but there was a defect that UDR was merely a film supervisor and there was no other part in the construction work for the instant real estate, and that E, which was the tax accountant, had subcontracted the construction contract to the △△ Ho and the name of the △△△△ corporation. However, even according to the testimony of the OCC, E, which was the testimony of the OCC, is the case where E, E, which was the case, was the case where E, E, which was the case where the Plaintiff, had a container-related company and was the case where E, which was the case where the construction work in question, was entrusted to the supervision of the construction work. However, it is very exceptional that the construction cost was paid to E, which had no business experience related to the construction work in a considerable amount of amount exceeding 1.55 billion won.

(다) 원고는 2003. 2. 28. 이 사건 공사대금 명목으로 최BB의 여동생인 최FF에게 15억 5,000만 원을 지급하였는데, 2002. 9. 1.부터 2003. 3. 28.까지로 정해진 공사 기간의 도중에 공사진행 내역이나 기성고와는 아무런 상관없이 일시불로 지급하였을 뿐만 아니라, 그 지출내역을 보더라도 모두 최BB와 그 처인 장GG로부터 ☐☐협, 주식회사 ♤♤카, 최FF 및 최BB 등의 각 계좌로 이체되었을 뿐 달리 이 사건 부동산에 대한 리모델링 또는 인테리어 공사와 관련된 업체 등에 지급된 내역이 전혀 없다.

(라) 이 사건 부동산 교환계약의 컨설팅을 담당하였다는 최BB는 본래 ■■아 세무법인 소속 세무사로서 이 사건 부동산 교환계약 외에 달리 컨설팅업무를 수행한 적은 없다고 증언하고 있고, 한편 이 사건 부동산컨설팅계약서에 의하면 컨설팅업무가 완료된 이후 컨설팅 비용을 정산하기로 약정하였는바, 이 사건 부동산 교환계약일이 2005. 7. 4.이고 최BB가 세금계산서를 발행한 일시가 2005. 7. 29.임에도 원고가 최BB에게 2억 2,000만원을 송금한 일시가 2005. 11. 1.로 서로 상이하여 원고가 위 금원을 컨설팅비용으로 지급하였다고 단정하기도 어렵다.

(E) If a maximum BB consulted on the instant real estate exchange contract, it is common to separately request the broker to perform the relevant duties, instead of requesting the broker to act as a broker. At the time of the instant exchange contract with respect to the instant real estate, GH of ○ Real Estate, as a broker, mediated the exchange contract as a broker and applied for the approval seal of the contract by a certified judicial scrivener Kim J-J.

3. Conclusion

Therefore, the judgment of the first instance court is legitimate, and the plaintiff's appeal is dismissed. It is so decided as per Disposition.