District Court-2014-Gu Partnership-9191 (Law No. 19, 2016.04)

The amount received as the delayed cost of the transfer of ownership from the transferee of real estate shall be equivalent to the honorarium.

It is reasonable to deem that the amount received as a cost for delaying the transfer of ownership from the transferee of real estate falls under the honorarium, and part of it cannot be deemed necessary expenses.

Article 21 (Other Incomes)

Article 33 of the Income Tax Act (Non-Inclusion of Necessary Expenses)

2016Nu43963 Detailed global income and revocation of disposition

OO

O Head of tax office

Suwon District Court Decision 2014Guhap9191 Decided April 19, 2016

oly 2016.10

November 17, 2016

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 of global income tax OOO on February 1, 2014 rendered by the Defendant to the Plaintiff shall be revoked.

1. Details of the disposition;

A. On April 4, 2005, the Plaintiff: (a) was divided into an O-O-O-O-O-O-O-owned area owned by the Plaintiff located within a land transaction permission zone; (b) an O-O-O-O-O-O-owned area for a Ri (on November 2, 2006, the same RiO-O-O-O-O-O-O-listed area for the same time; (c) each of the above O-O-O-O-O-O-owned land was sold within 70 square meters in total; (d) each of the above O-O-200 square meters divided into a O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-27, respectively; and (e) each of the above 20-O-O-O-O-2.

B. On July 1, 2008, the Plaintiff made the registration of ownership transfer directly in the name of BBB corporation with respect to the OO-O forest area OO-OO forest area, among the instant land on OO-O-O forest area.

C. AA filed a lawsuit against the Plaintiff on June 10, 2009 against the Plaintiff for the registration of ownership transfer on the remaining land except for OO-O land of this case (OO-O-O-O-O). AA had been granted land transaction permission on the remaining land on June 10, 201 where the lawsuit was pending.

D. On October 14, 2010, the above lawsuit was pending, and on October 14, 2010, the decision was rendered with the main contents that the Plaintiff would receive OO Won from AA and simultaneously implement the procedure for the registration of ownership transfer of the remaining land.

E. On September 9, 2011, AA deposited OO(hereinafter “the instant money”) in the Plaintiff’s future on September 9, 201, and the Defendant seized the said money on September 16, 201, and appropriated it to the Plaintiff’s delinquent tax amount.

F. On November 30, 201, the Plaintiff reported and paid OOO of the transfer income tax for the year 2005 with respect to the transfer of the instant land. Meanwhile, the Defendant deemed the instant money as an honorarium under Article 21(1)17 of the Income Tax Act and rendered the instant disposition imposing OO of the global income tax for the Plaintiff on February 1, 2014, by deeming it as an honorarium under Article 21(1)17 of the Income Tax Act.

[Ground of recognition] Unsatisfy, Gap evidence 1 to 3, Gap evidence 5

(2) No. 1, No. 1, and the purport of the entire pleading

2. Whether the disposition is lawful;

A. The plaintiff's assertion

(1) The instant money was paid to AA on July 25, 2007 by imposing the transfer income tax to be borne by the transferor on the basis of his/her own written statement, and the payment agreement under the said written statement is transferred before May 31, 201, which is the tax base return and payment deadline of the instant case, and is transferred to complete the registration of transfer of ownership. As such, the instant money is only included in the transfer value as the consideration for transfer.

(2) The substance of the instant money is an agreement under which AA bears the transfer income tax expected to increase due to the delay in the transfer registration of ownership on the instant land due to a cause attributable to AA, which is the buyer, and thus, cannot be deemed to constitute “a recompense” under Article 21(1)17 of the Income Tax Act. Even if there is room for the instant money to constitute a honorarium under the Income Tax Act, among the instant money, the amount of the OO (the amount obtained by subtracting the amount of tax to be borne if the Plaintiff reported and paid on July 31, 2005) out of the amount of tax paid by the Plaintiff on November 30, 201 shall be deemed to be the additional tax, etc. for the transfer income tax, etc. for which the period of delay in the acquisition registration of the transfer registration was occurred, and thus, it does not constitute a honorarium to be borne by AA under each written statement on July 25, 2007, or constitutes necessary expenses to be deducted when calculating the amount of tax.

B. Relevant statutes

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

C. Determination

(1) The particulars leading up to July 25, 2007 of the instant case’s writing.

According to each evidence mentioned above and the statements mentioned in Gap evidence Nos. 4 and 6, the following facts are acknowledged:

the corporation.

(A) AA purchased the instant land from the Plaintiff and sold it to CCC without completing the registration of ownership transfer.

(B) On July 25, 2007, AA and CCC had delayed the transfer registration of ownership with respect to the land of this case, and around July 25, 2007, AA and CCC prepared and rendered to the Plaintiff each of the following contents (hereinafter referred to as “each of the instant notes”).

(C) On September 19, 2007, AA and CCC drafted a promissory note No. 31 December 31, 2007, with a face value OO, issuer AA, CCC, and one other, the payee, and the due date.

(2) The nature of the instant money

(A) Article 21(1)17 of the Income Tax Act refers to money and valuables provided as one of other income in connection with administrative affairs or provision of services, etc. The determination of whether such money and valuables fall under this case should be made by comprehensively taking into account the motive and purpose of receiving the money and the relationship with the other party, amount, etc. In addition, even if the money and valuables are deemed to have been paid as the meaning of a case concerning the performance of out-of-the-spot affairs, if the money and valuables are deemed to have the character not to be considered as an honorarium, the entire amount of the money and valuables should not be determined as an honorarium (see Supreme Court Decision 2013Du3818, Jan. 15, 2015).

(B) According to each of the instant notes, AA and CCC acknowledge that the transfer of ownership has been delayed due to the circumstances on the part of AA in relation to the purchase and sale of the instant land, and jointly and severally assume the transfer income tax amount additionally incurred after July 31, 2005.

(1) However, the liquidation of the purchase and sale of the instant land was conducted on July 31, 200. Since the transfer income tax is calculated on the basis of the transfer time, the Plaintiff’s tax base was reported by May 31 of the year following the taxable period to which the permission date for the land transaction contract belongs pursuant to Article 110(1) of the Income Tax Act, and in such a case, no additional transfer income tax may accrue after July 31, 2005. (2) On the other hand, each of the instant land was prepared under the joint title of the Plaintiff’s purchase and sale of the instant land other than the Plaintiff’s purchase and sale of the instant land, and the No. 2000,000,000,0000 won were to be borne by the Plaintiff for purchase and sale of the instant land, and the No. 201,000,000 won were to be borne by the Plaintiff for the remaining purchase and sale of the instant land by the Plaintiff’s 7,000,0000 won.

(3) Of the instant money, whether an OO member is not an honorarium nor can it be deemed necessary expenses.

(A) According to the purport of the evidence No. 2-1 and No. 2, the Plaintiff reported and paid the transfer income tax following the transfer of the instant land on November 30, 201, with the tax base as the OOO members in filing a return and payment of the transfer income tax on November 30, 201. In addition, the final tax amount calculated by adding the OO members of the additional tax for unfaithful return and the additional additional tax for unfaithful return, the local income tax as the OO members, and the OO members in filing a return and payment of the total amount of the OO members. If the transfer income tax from the transfer of the instant land was reported and paid within the time limit, the calculated tax amount as the O members is the OO members, and if the scheduled tax amount is deducted as the OO members, the final tax amount as the OO members of the local income tax, and the OO members of the local income tax.

(B) However, as seen earlier, the amount paid pursuant to each of the instant agreements is limited to the amount that the Plaintiff would incur by preserving the transfer income tax that the Plaintiff would incur by cooperating with the resale of unregistered land, and the transfer income tax from the transfer of the instant land should be borne by the Plaintiff (the instant agreement also imposes on the Plaintiff as of July 31, 2005). Therefore, even if the Plaintiff reported and paid the transfer income tax within the normal time limit, the amount should not be included in the instant amount from the money or the necessary cost. Furthermore, as to the portion claiming that the Plaintiff additionally bears the burden following the Plaintiff’s return and payment of transfer income tax from the transfer of the instant land on November 30, 201, (1)OOOOOOO was not deducted due to the Plaintiff’s failure to make a preliminary return; (2) the portion of penalty tax not paid from 100 to 310.16.5.16.15.61, the Plaintiff did not have an obligation to pay penalty tax.

Ultimately, the part that the Plaintiff did not constitute a honorarium or claimed as a cost is merely the part that the Plaintiff did not neglect, delay, or pay the return and payment by itself, and it is not a cost that was paid according to the purport of the letter of this case, and it is not a kind of deduction from the money of this case.

(4) Sub-determination

The plaintiff's assertion is without merit, and the disposition of this case is legitimate.

3. Conclusion

Since the judgment of the first instance is justifiable, the plaintiff's appeal is dismissed as it is groundless.