Suwon District Court 201Gudan1519 ( November 28, 2011)

National Tax Service Review and Transfer 2010-0362 ( October 22, 2011)

The amount of a lease deposit with no opposing power shall not be deemed necessary expenses.

The fact that the buyer of the leased real estate without opposing power returns the rental deposit to the lessee is either paid in the absence of payment obligation or deemed paid for reasons different from the acquisition of the leased real estate, and thus, it cannot be deemed that the transfer cost inevitably paid for the transfer of the building constitutes transfer cost.

Article 97 of the Income Tax Act

2012Nu692 Revocation of disposition of imposing capital gains tax

Quantity XX

Head of the High Tax Office

Suwon District Court Decision 2011Gudan1519 Decided November 28, 2011

July 11, 2012

August 22, 2012

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance shall be revoked. The imposition disposition of KRW 000 on October 25, 2010 against the Plaintiff on October 25, 2010 shall be revoked.

1. cite the judgment of the first instance;

The reasoning of this court's judgment is the same as that of the court of first instance, and thus, it is cited in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure

The plaintiff asserts that the court of this case did not pay 000 won to XX, the lessee of the building of this case, but also constitutes "transfer expenses" as necessary expenses for the transfer of the building of this case, and even if it paid as type deposit, it constitutes the necessary expenses inevitably paid to fulfill the duty of delivery under the transfer contract. Furthermore, the disposition of this case excluding the above 00 won from the "necessary expenses to be deducted from the transfer value" is contrary to the principle of substantial taxation.

However, in full view of the following facts: (a) the amount of lease deposit or eviction cost, etc. that the buyer of the real estate for lease without opposing power returned to the lessee is either paid under a condition without any obligation to pay, or appears to have been paid for any reason different from the acquisition of the real estate; (b) the Plaintiff, after acquiring the building of this case through a public sale, agreed to reimburse the Plaintiff’s expenses for lien, unpaid management expenses, and lease deposit; and (c) agreed to pay 000 won for the purpose of the building of this case with the former lessee, who has no opposing power, as the expenses for surrendering the building of this case, and accordingly, paid 00 won to XX; or (d) even if not, it is reasonable to deem that the said amount was paid for any reason different from the acquisition of the building of this case. Therefore, the Plaintiff’s assertion that the said amount was inevitably paid for the transfer of the building of this case cannot be deemed to constitute transfer expenses, and further, it cannot be deemed to contravene the principle of substantial taxation other than necessary expenses.

2. Conclusion

The judgment of the first instance is justifiable. The plaintiff's appeal is dismissed.