Seocho 2012, 3744

Since there is no objective data to acknowledge that the actual construction has been executed, the amount equivalent to the construction cost shall not be deducted as necessary expenses.

The evidence of the expenditure of construction expenses is merely a quotation or receipt, and there is no objective evidence to support the actual execution, such as the evidence of financial transactions, field photographs, and the details of the sales report of the construction company, and the construction company shall not deduct the construction expenses from the necessary expenses, in light of the fact that the construction company is an enterprise already closed.

Article 97 of the Income Tax Act and Article 163 of the Enforcement Decree of the Income Tax Act

2013Gudan6391 Revocation of Disposition of Imposing capital gains tax

AA

Head of Eastern Tax Office

August 29, 2013

September 26, 2013

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposition of capital gains tax for the year 2004 imposed on the Plaintiff on August 1, 2012 that exceeds the OOO won shall be revoked.

1. Details of the disposition;

"A. The plaintiff, from May 4, 1989, acquired OO-dong OO-dong 352-19 land 179.2 square meters and above-ground 3 buildings (hereinafter referred to as "the above land and buildings, and the above real estate") from O-si O-dong 352-19, and transferred them to CCC on May 31, 2004.

C. After the result of cross-audit, the director of Busan Regional Tax Office confirmed that CCC reported the transfer income tax of the instant real estate as OOO, and notified the Defendant of the taxation data. On August 1, 2012, the Defendant corrected the transfer value of the instant real estate as OOO, and notified the Plaintiff of the transfer income tax OOO in 204.

". The plaintiff is dissatisfied with this and filed a request with the Tax Tribunal on August 13, 2012, and the Tax Tribunal made a decision that "OOOOOOs shall be included in the necessary expenses when acquiring and transferring the instant real estate on December 18, 2012, the transfer income tax base and tax amount shall be corrected, and the remaining claims shall be dismissed." Accordingly, on January 2, 2013, the defendant corrected the reduction of OOOOs won (hereinafter referred to as "the disposition in which the disposition of imposition of the tax amount remaining after the reduction or correction is referred to as "the disposition in which the disposition of imposition of OOOs" was taken"), "." [Grounds for recognition], "The fact that there is no dispute, and evidence Nos. 1 and 4, and 5, and evidence Nos. 1 through 3 (including the number

2. The assertion and judgment

A. The plaintiff's assertion

1) The Plaintiff’s real acquisition value of the instant real estate is not an OO personnel but an OO personnel.

2) The Plaintiff: (a) the instant real estate: (b) the indoor parking lot construction, including the wornout pipeline construction, and the toilet repair construction, and (c) the objective value of the said real estate increased; and (d) the transfer should be deducted from the amount of necessary expenses as necessary expenses.

B. Relevant statutes

/ Income Tax Act (amended by Act No. 7289 of Dec. 31, 2004)

Article 97 (Calculation of Necessary Expenses for Transfer Income) (1) In the calculation of gains on transfer of a resident, the necessary expenses to be deducted from the economic value shall be those as referred to in the following subparagraphs:

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

(1) Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 118529 of August 30, 2004)

(3) For the purpose of Article 97 (1) 2 of the Act, the term “capital expenses as prescribed by the Presidential Decree” means one of the following subparagraphs:

3. Expenses paid for the change, improvement or convenience of the use of the transferred asset;

C. Determination

1) As to the first argument

On the other hand, there is no objective evidence to acknowledge the plaintiff's assertion, and instead, comprehensively taking account of the overall purport of the arguments, the sales contract on the real estate of this case only states the purchase price as an OOO, and it can be recognized that the plaintiff voluntarily reported and paid the transfer income tax to the head of Nam-gu Tax Office on the premise that the acquisition price is OOO won. The plaintiff's assertion on this part is without merit.

2) As to the second argument

The burden of proof on the tax base, which is the basis of taxation, is in the taxation office, and the tax base is deducted from necessary expenses, so the tax office should bear the burden of proof on revenue and necessary expenses, in principle, as well as the tax office should bear the burden of proof on the taxpayer, but most of the facts generating necessary expenses are in the territory under the control of the taxpayer, so it is difficult for the tax office to prove it. If it is reasonable to prove it as the taxpayer in consideration of the difficulty of proof, equity between the parties, etc., it is consistent with the concept of equity (see, e.g., Supreme Court Decisions 2006Du16137, Oct. 26, 2007; 206Du16137, Oct. 26, 200), and Article 97 (1) 2 of the Income Tax Act, and Article 163 (3) 3 of the Enforcement Decree of the same Act, which provides as one of the necessary expenses to be deducted from the transfer value of assets.

The evidence Nos. 6-1, 7, 8, 10-3, and 11-14, which seems to correspond to the plaintiff's assertion that construction cost for the real estate of this case was paid by the plaintiff, are merely a quotation or receipt, and there is no objective data to recognize that construction was actually conducted, such as the financial transaction evidence to support it, on-site photographs, and sales report of the construction company, and "CC" is a business already closed on November 1, 1994, it is difficult to believe it as it is, and it is insufficient to recognize the plaintiff's assertion by the witness EE testimony alone, and this part of the plaintiff's assertion is also without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed.