early 2012 Middle 3356 ( October 11, 2012)

In the comparative taxation of real estate sales businessman, sales promotion expenses do not constitute necessary expenses.

In applying the method of calculating capital gains tax when compared taxation by the real estate sales businessman, sales allowances paid to the salesman employed by the relevant resident in connection with the sale of real estate shall not be deemed necessary expenses for transferred assets when calculating profit margin on housing,

Article 64 of the Income Tax Act Article 122 of the Enforcement Decree

2013Guhap322 Disposition of revocation of the detailed global income

United StatesA

BB Director of the Tax Office

June 13, 2013

August 22, 2013

1. The plaintiff's claim is dismissed.

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

The Defendant’s imposition of the global income tax for the Plaintiff on April 24, 2012 and the global income tax for the year 2009 and the global income tax for the year 2010 shall be revoked.

1. Details of the disposition;

A. The Plaintiff is a real estate sales businessman who purchased land including the pre-sale and answer of station area development area, such as OOO station, and sells it for the purpose of new construction site, such as commercial buildings.

B. On June 3, 2009, the Plaintiff registered the business in his name with the name of "CCC" as the location of OO-dong 642-1 O ventureel 1107, and registered the business in his name as the location of O-dong 735-11 O-O-9 on September 26, 2009.

C. In 2009, the Plaintiff reported the income amount of the business place under the Plaintiff’s name as OOO, and necessary expenses as OOOO (including OOOOOO for sales promotion expenses). The Plaintiff reported the income amount of the business place under the name of OO1, and the necessary expenses as OO1 (including OOOOO for sales promotion expenses). The Plaintiff reported the income amount of the business place under the Plaintiff’s name in 2010 as OOO and the necessary expenses as OOO (including sales promotion expenses) and the income amount of the business place under the name of OD as OO and the necessary expenses.

D. As a result of the investigation conducted by the Defendant on the above reported details, the fact that the actual business operator of the place of business in DoD was the Plaintiff was identified, the Plaintiff’s global income was corrected to the amount included in the income amount of the place of business in the above DoD, and the processing appropriation among the sales promotion expenses was denied, and sales promotion expenses in 2009 were corrected to the OO members, and the sales promotion expenses in 2010 were corrected to the OO members, respectively. The Defendant imposed the Plaintiff on April 24, 2012, and the sales promotion expenses in 2010 on the amount calculated under Article 64(1)2 of the Income Tax Act (in calculating real estate profit margin, sales promotion expenses are not recognized as necessary expenses of transferred assets), according to the tax amount calculated with respect to the Plaintiff on April 24, 2012, and calculated under Article 64(1)2 of the Income Tax Act (hereinafter “instant disposition”).

E. The Plaintiff dissatisfied with the instant disposition and filed an appeal with the Tax Tribunal on July 13, 2012, but was dismissed on October 11, 2012.

[Grounds for Recognition] The non-contentious facts, Gap evidence 1 to 4, and Eul evidence 1 and 2, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) According to Article 97 (1) 3 of the Income Tax Act and Article 163 (5) 1 (c) of the Enforcement Decree of the same Act, and Article 97 (1) 3 of the same Act and Article 163 (5) 1 (c) of the Enforcement Decree of the same Act, the notarial expenses directly paid to transfer real estate, and stamp and brokerage expenses are equivalent to the necessary expenses deducted from the transfer value when calculating gains on transfer, and the sales promotion expenses paid by the plaintiff to the sales members also constitute the brokerage expenses paid by the plaintiff to attract many and unspecified persons and transfer real

2) The Plaintiff imposed and paid sales promotion expenses already paid to the sales members as business income, and thus, the instant disposition imposing the comprehensive income tax without deducting them is not only a double taxation, but also a violation of the principle of substantial taxation aiming at the fairness of tax burden and the principle of satisfaction ability burden by bearing the transfer income tax exceeding the income actually reverted to the Plaintiff.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

1) As to the first argument

Article 64 of the Income Tax Act and Article 122 (2) of the Enforcement Decree of the same Act provide that the real estate profit margin of a real estate sales businessman shall be the value calculated by subtracting the necessary expenses for transferred assets and the basic deduction for capital gains under Article 163 (1) through (5) of the Enforcement Decree of the same Act from the sales price of the relevant land, and Article 163 (5) 1 of the Enforcement Decree of the same Act stipulates the securities transaction tax paid in accordance with the Securities Transaction Tax Act, the cost for filing a return of tax base and contract, the cost for preparing a return of tax base and contract, and the

The following circumstances revealed by the relevant laws and regulations and the evidence mentioned above, i.e., expenses to be deducted as necessary expenses in calculating real estate trading marginal profits, i.e., expenses directly spent to transfer the assets, i.e., expenses to be deducted as necessary expenses. The sales promotion expenses paid by the Plaintiff in this case are those used in a will to an unspecified majority, and the sales promotion expenses incurred by the Plaintiff in this case are different from the "initation expenses" under Article 163 (5) 1 of the Enforcement Decree, and it is difficult to view them as expenses directly corresponding to the transfer of assets. ② Under Article 32 of the Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions Act, and Article 20 of the Enforcement Rule of the same Act, brokerage fees for land shall not exceed 0.9% of the transfer value, but in the case of 2009, 52% of the transfer value of real estate and 2010, the Plaintiff's sales promotion expenses should not be considered as necessary expenses for the promotion of sale.

2) As to the second argument

The sales promotion expenses paid to the service provider (1) can be deducted as necessary expenses in calculating the calculated global income tax. However, in order to avoid the heavy taxation of the transfer income tax, it is imposed in comparison with the transfer tax in accordance with the provisions of Article 64(1) of the Income Tax Act in order to prevent the tax burden from being imposed as low global income tax. Therefore, double taxation does not occur, and (2) tax has various functions such as redistribution of income in addition to the original function that satisfies the financial demand of the State, proper allocation of resources, and adjustment of the economy, and there is a freedom of legislative formation that can be determined in consideration of such various policy factors in determining the citizen's tax burden. If a provision that deducts the sales promotion expenses paid by the plaintiff from the necessary expenses, the sales promotion expenses paid by the service provider, etc. can be easily permitted to sell real estate at a higher price and more easily, which eventually results in permitting or promoting the speculative transactions of real estate, and thus, the legislative decision that does not permit it can not be considered as violating the principles of substantial taxation or the plaintiff's tax principle.

3. Conclusion

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