National Tax Service Review and Transfer 2011-0103 (O. 22, 2011)

The disposition that deducts the depreciation costs of a building from the acquisition value and calculates the transfer margin is legitimate.

Since real estate rental business is operated, building depreciation is entered in an annual account book, and depreciation costs are deducted from necessary expenses at the time of filing the final return of global income tax base, global income tax is determined and the amount of depreciation is not determined to be included in necessary expenses because the revised return was filed.

Article 97 of the Income Tax Act

2011Gudan23613 Revocation of Disposition of Imposing capital gains tax

LAA

Head of Seodaemun Tax Office

March 13, 2012

April 3, 2012

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 KRW 000 on January 6, 2011 against the Plaintiff (which appears to be a clerical error in January 9, 2011) is revoked.

1. Details of the disposition;

가. 원고는 2006. 2. 2. 서울 은평구 OO동 000 대 349㎡ 및 그 지상 건물(연면 적 702.61㎡， 이하 '이 사건 건물'이라 하고， 위 토지와 건물을 통칭할 때는 '이 사건 부동산'이라 한다)을 취득하여 보유하다가， 2007. 9. 13. 이 사건 부동산을 양도하였다.

B. On November 30, 2007, the Plaintiff calculated gains from transfer using the Defendant’s acquisition price of the instant real estate as KRW 000, and the transfer price as KRW 000, and reported and paid the transfer income tax for the year 2007.

C. However, the Defendant, on January 6, 201, issued the final return on global income tax for the Plaintiff, and “the Plaintiff,” on January 6, 2006 and 2007, deducted the depreciation cost of the instant building from the acquisition value of the instant real estate as its acquisition value, on the ground that “the depreciation cost of the instant building (100 won for the year 2006 + KRW 007 for the year 2007) was deducted from the necessary expenses” (i.e., the acquisition value of the instant real estate (=00 won - KRW 000), and issued a notice of increase in capital gains tax for the year 2007 (hereinafter “the initial disposition”).

D. After that, the plaintiff's objection, the defendant, on February 22, 2011, deemed that the depreciation costs corresponding to the period after the transfer of the building of this case cannot be deducted from the acquisition value, and that the depreciation costs in 2007 cannot be calculated again as 00 won ( = 000 won - 000 won) and the total depreciation costs (= 000 won in 2006 + 000 won in 2007 + 000 won in 2007, and hereinafter referred to as "the depreciation amount in this case") were deducted from the total depreciation costs ("the depreciation amount in this case"), 00 won (= 000 won in - 00 won in 200) were calculated as acquisition value, and the amount of capital gains tax corresponding to the period after the transfer of the building of this case was determined and notified as 00 won in the final return on global income (hereinafter referred to as "disposition in this case").

[Based on Recognition] The non-contentious facts, Gap evidence 1, 2, and Eul evidence 1, 2, 4, and 6 (including each number), and the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

For the following reasons, the Plaintiff asserts that the instant disposition is unlawful: (i) a revised tax return to exclude necessary expenses to increase the amount of income in filing a revised global income tax return; (ii) a revised global income tax return to exclude the instant depreciation amount from necessary expenses before the taxing authority rectifys the amount of the instant disposition (or the revised global income tax), and thus, the Plaintiff became final and conclusive to exclude the instant depreciation amount from necessary expenses. (ii) Even though the Plaintiff filed a revised global income tax return to exclude depreciation costs in 2006 and 2007 from necessary expenses, it is unlawful to deduct the instant depreciation amount from the acquisition value of the instant real estate after the revised global income tax return was filed; and (iii) even if the Plaintiff appropriated the amount of depreciation in 207 as necessary expenses while filing a final tax return on global income tax base for the tax base for the global income tax for 2007 on May 31, 2008, the amount of depreciation amount can not be deducted from the acquisition value return for at least 2007 years, which is the final tax base return for global income tax for 2007 years.

(b) Related statutes;

It is as shown in the attached Table related statutes.

(c) Fact of recognition;

(1) On February 2, 2006, the Plaintiff acquired the instant real estate and engaged in the leasing business in the instant real estate, and entered the acquisition cost of the instant building at KRW 000,000 in the account book by appropriating the depreciation cost of KRW 00 each year according to the straight line method (40 years during which the lifespan is 40 years).

(2) On May 31, 2007, the Plaintiff, while filing a final return on the tax base of global income tax for the year 2006, appropriated the amount of KRW 000 (00 x 11/12) to the Defendant as necessary expenses and deducted the amount of KRW 000 in 206.

(3) On September 13, 2007, the Plaintiff: (a) transferred the instant real estate to KimGG et al. and one other; and (b) on November 30, 2007, upon filing a preliminary return on the tax base of capital gains tax, the Plaintiff calculated gains on transfer by making the acquisition value of the instant real estate as KRW 000, not deducting the instant depreciation amount from the acquisition value.

(4) On May 31, 2008, the Plaintiff, while filing a final return on the tax base of global income tax for the year 2007, deducted KRW 000 as necessary expenses from the Defendant in 2007.

(5) On January 6, 2011, the Defendant, while not deducting depreciation costs in 2006 and 2007 at the time of the preliminary return of the tax base of the transfer income tax of the instant real estate, was a reported error and calculated gains from transfer by deducting the depreciation costs from the acquisition value, and subsequently, took the instant disposition to partially reduce the transfer income tax amount on February 22, 201 upon the Plaintiff’s objection.

(6) Meanwhile, on December 13, 2010, the Plaintiff filed a revised tax base return for global income tax in 2006 and 2007 with the Defendant, and the Plaintiff filed a revised tax base return for global income tax in 2006 and 2007, stating that the depreciation costs in 2006 and 2007 were deducted as necessary expenses, and that the said depreciation costs were not deducted as necessary expenses.

[Reasons for Recognition] The above evidence, the entry into the three, five, and seven (including each number), and the whole purport of the pleading

D. Determination

(1) As to the above argument (the claim that the depreciation amount is not included in the necessary expenses)

According to Article 45 of the Framework Act on National Taxes (amended by Act No. 8830 of Dec. 31, 2007), and where the tax base and tax amount entered in the tax base return falls short of the tax base and tax amount to be reported under the tax law, and the deficiencies or tax amount entered in the tax base return exceeds the tax base and tax amount to be reported under the tax law, the head of the competent tax office may make a revised tax base return before he determines or revises the relevant national tax and the tax base and tax amount to be reported under the tax law, and Article 33 (1) 6 of the former Income Tax Act (amended by Act No. 9897 of Dec. 31, 2009, hereinafter the same shall apply) and Article 62 of the Enforcement Decree of the same Act provide that the plaintiff's revised tax base and tax amount to be included in the necessary expenses for each of the above two years after the revised tax base return shall be included in the calculation of the amount of global income to be included in the calculation of the income amount to be included in the necessary expenses.

(2) As to the above argument (the allegation of illegality in the amount of depreciation deduction)

According to Article 97 (2) of the former Income Tax Act, as depreciation costs of the assets during the period of possession of the transferred assets, when any amount has been or is to be included in the necessary expenses in calculating the real estate rental income or business income for each year, the deducted amount shall be considered to be the acquisition value. According to the foregoing facts, the Plaintiff entered the depreciation costs of the building of this case in the account book as appropriating 000 won each year while running the lease business from the real estate of this case, and when filing the final tax return on global income tax in 2006 and 207, the said depreciation costs were included in the necessary expenses or to be included in the calculation of the income amount of each year, and the Plaintiff reported that the acquisition value of the real estate of this case was not deducted from the acquisition value of the transfer income tax base after the transfer of the real estate of this case on July 30, 207, the Plaintiff included the depreciation amount for 207 years after deducting the acquisition value of the real estate of this case from the acquisition value of the real estate of this case during the remaining period of 207 years.

E. Sub-committee

Therefore, the instant disposition that calculated capital gains by deducting the depreciation amount of this case from the acquisition value of real estate is lawful.

3. Conclusion

Then, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.