early 2013 Middle 4678 ( December 18, 2012)

The brokerage commission not proved by objective evidence is difficult to deduct it as necessary expenses.

Since the fact of expenditure of brokerage commission equivalent to the amount claimed by the claimant is not proved to be objective evidence, it is difficult to deduct it as necessary expenses.

Article 97 (Calculation of Necessary Expenses for Transfer Income)

2013Gudan534 Revocation of Disposition of Imposing capital gains tax

AA

Head of Namyang District Tax Office

June 30, 2014

August 18, 2014

1. The plaintiff's claim is dismissed.

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

1. Details of the disposition;

A. On March 5, 2003, the Plaintiff purchased the land size of the Do-dong, Chungcheongnam-gun, Chungcheongnam-do (hereinafter referred to as the “instant real estate” in combination) and transferred the instant real estate to AA on October 10, 2003. B. On December 1, 2003, the Plaintiff filed a preliminary return on the tax base of capital gains tax with the Defendant at KRW 80,850,000, the transfer value of the instant real estate as KRW 84,100,000. The Defendant notified the Plaintiff of the fact that the value the Plaintiff transferred from the distribution duty to AA is KRW 216,40,000,000, and on March 6, 2012, the Plaintiff notified the Plaintiff of the fact that the transfer value of the instant real estate was KRW 91,87,930, the transfer income tax reverted to AA (hereinafter referred to as the “instant disposition”).

D. The Plaintiff dissatisfied with the instant disposition and filed an appeal with the Tax Tribunal on October 23, 2012. However, the Tax Tribunal dismissed the said appeal on December 18, 2012. [Grounds for recognition] There is no dispute, and the entries in subparagraphs 1, 2, and 1, 2, and 1, and the purport of the entire pleadings; 2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) The Plaintiff entrusted the sale of the instant real estate to BB and DD and paid KRW 132,300,000 out of the purchase price to BB and DD, on the grounds that BB and DD are able to make a high profit, and that there is no possibility that the Plaintiff would sell the instant real estate without any profit. Accordingly, since the acquisition price of the instant real estate is KRW 84,100,000, the instant disposition that did not recognize the fee as necessary expenses is unlawful and unjust.

She also the statutory return date of December 31, 2003, which is two months from the last day of the month to which the date of the transfer of the instant real estate belongs. Thus, the instant disposition taken on January 1, 2004, which was issued on March 6, 2012 after five years from January 1, 2004, is an illegal and unjust disposition that was made on the basis of the exclusion period of the imposition of national taxes.

(1) AA reported the purchase price of the instant real estate as KRW 216,00,000. The Plaintiff received KRW 100,000,000 from AA on August 11, 2003, KRW 100,000,000 on September 25, 2003, and KRW 215,00,000,000 on October 7, 2003.

The sales contract of the instant real estate submitted by Luxembourg is indicated as the Plaintiff, the buyer, and the observer, the agent of AA, and the 20,000,000 won on the date of the contract, among the purchase price of KRW 216,40,00,00,000, and the intermediate payment of KRW 100,000 on August 11, 2003, and KRW 18,896,291 on the remainder of 96,400,000, and the permission cost of KRW 18,896,291 on September 30, 203.

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 3, Eul evidence Nos. 2 through 7, the purport of the whole pleadings

C. Determination

(i)whether necessary expenses are recognized

In addition to the above facts and the whole purport of the arguments, the following circumstances revealed: ① the Plaintiff’s 132,30,000,000 won claimed as commission exceeds the statutory brokerage commission; ② the Plaintiff, BB, and DD did not prepare any contract on commission; ② the Plaintiff’s purchase of the instant real property by asserting that high-income can be paid; ② there seems to be no special reason to pay 132,300,000 won exceeding 60% of the sales price to BB, and DD; ③ the sales contract of the instant real property submitted by AA was written by the Plaintiff as the seller; ③ the Plaintiff received a total of KRW 235,00,000,000, including the sales price and the permission cost stated in the above contract; ④ the Plaintiff’s 132,300,000,000 won was not reported as necessary expenses when the tax office initially made a preliminary return on transfer income tax base; ⑤ the Plaintiff’s 300,000,000 won was not reported as necessary expenses between B and BD.

"Fraud and other unlawful acts" under Article 26-2 (1) 1 of the Framework Act on National Taxes refers to any deceptive scheme or other active acts that make it impossible or considerably difficult to impose and collect taxes (see, e.g., Supreme Court Decision 2013Du7667, Dec. 12, 2013). In light of the following, the Plaintiff submitted a sales contract stating the purchase price as KRW 84,100,000, different from the actual transaction price when the Plaintiff reported the transfer income tax of this case, the fact that the Plaintiff submitted a sales contract stating the purchase price as KRW 84,100,000, unlike the actual transaction price is as seen above. This is a "Fraud or other unlawful acts that make it considerably difficult to impose and collect taxes as an active deceptive act." Thus, the exclusion period for the imposition of national taxes of this case is the period from the time limit for filing the transfer income tax or the report, which is the deadline for filing the submission of the transfer income tax.

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.