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일괄양도된 쟁점주택이 1세대 1주택 특례가 적용되는 다가구주택에 해당되는지 여부

조세심판원 조세심판 | 2017-11-12 | 조심2017중4243 | 양도

【Request Number】

[Request Number] Trial of 2017 mid-4243 ( November 13, 2017)

[Items]

[C] Assignment [Type of Decision] Dispact

[Summary of Decision]

[Determination] The point of issue is four floors used as a house, and it is difficult to view the special case of one house for one household under the proviso of Article 155(15) of the Enforcement Decree of the Income Tax Act as a multi-family house subject to the application of the special case of one house for one household because the number of houses used as a house does not meet the requirements for multi-family house under attached Table 1 of the Enforcement Decree of the Building Act, and it is judged that the disposition by the

[Related Acts]

[Related Acts] Article 155 of the Enforcement Decree of the Income Tax Act

【Reference Decision】

[Reference Decision] High Court Decision 2001west 2803

【Disposition】

The appeal is dismissed.

【Reasoning】

1. Summary of disposition;

A. On October 12, 2015, the claimant acquired a new building of 217.4 square meters and 370.24 square meters of a building (5 stories and 11 households on the land; hereinafter referred to as “sub-point housing”) on the OO land in Seoul Special Metropolitan City, and transferred the entire issues to OO members of the housing, and the instant housing falls under multi-household housing registered in the public account book or multi-family housing under Article 155(15) of the Enforcement Decree of the Income Tax Act, and made a preliminary return of capital gains tax by applying the non-taxation of one household to the entire housing in the disputing housing by applying

B. In May 2017, the disposition agency: (a) conducted an investigation on the capital gains tax of the claimant; and (b) deemed that the housing in dispute falls under multi-family housing, not multi-family housing; (c) and (d) the portion in which the claimant has resided among the housing in question, the disposition agency corrected and notified the OO of the capital gains tax corresponding to the capital gains tax corresponding to the year 2015 by applying the non-taxation

C. The claimant appealed and filed an appeal on September 6, 2017.

2. Opinions of the claimant and disposition agency;

A. The claimant's assertion

The key issue house is the first floor in the public register is the parking lot, stairs room, and 11 household's multi-household house from the second to the fifth floor, but it is not possible to sell and purchase the house by each floor in the form of ordinary detached house in appearance. The claimant has resided in five floors from the new house of issue to the OOO office on September 13, 201, and leased and operated the house as a multi-family house in the concept of multi-family house. The key issue house, such as the lease and operation of the house as a whole in the concept of multi-family house, and the transfer of the whole house to the sales contract of the house at issue, is in fact a multi-family house under Article 155 (15) of the Enforcement Decree of the Income Tax Act, and even if it falls under a multi-household house in the public register, if it falls under a multi-family house, the whole house at issue shall be considered as one house in accordance with the first decision of the Tax Tribunal (the first decision 2001Do2803, March 5, 2002).

(b) Opinions of disposition agencies;

In applying one house for one household under Article 15 (15) of the Enforcement Decree of the Income Tax Act, multi-family houses falling under subparagraph 1 (c) of attached Table 1 of the Enforcement Decree of the Building Act shall be deemed one house for each part partitioned so that one household can independently reside. In addition, in subparagraph 1 (c) of attached Table 1 of the Enforcement Decree of the Building Act, multi-family houses shall be deemed to have not more than three floors and the total floor area used for one house shall not exceed 60 square meters. The key house is that the number of floors used for a house is four floors and does not meet the requirements for multi-family houses stipulated in subparagraph 1 (c) of attached Table 1 of the Enforcement Decree of the Building Act, and thus, the disposition imposing capital gains tax on the applicant by applying the non-taxation of one house for one household only to the part in which the claimant resides is entitled to the non

3. Hearing and determination

A. Key issue

Whether the key issue house transferred en bloc corresponds to the multi-family house to which the special case of one house for one household applies;

B. Relevant statutes

(1) Article 89 of the Income Tax Act: (1) Income tax on capital gains (hereinafter “capital gains tax”) shall not be levied on any of the following incomes:

1.-2. (Bols)

3. Income generated from transfer of any of the following houses (excluding expensive houses the value of which exceeds the standard prescribed by Presidential Decree) and land appurtenant thereto, the area of which is within the area calculated by multiplying the area of which a building is built by the multiple rates prescribed by Presidential Decree for each region (hereafter referred to as "land annexed to a house" in this Article):

(a) One house for one household prescribed by Presidential Decree;

(2) Enforcement Decree of the Income Tax Act

Article 154 Scope of “one house for one household prescribed by Presidential Decree” in Article 89 (1) 3 (a) of the Act means that where a resident and his/her spouse together with the family members who make a joint living at the same address or same place of residence (hereinafter referred to as “one household”) hold one house in Korea as of the date of transfer, the holding period of the relevant house is at least two years (three years, in cases of a resident who falls under subparagraph 2 of paragraph (8)).

(b) Livelihood;

(3) When applying Article 89 (1) 3 of the Act, where a single building is combined with a house and a building other than a house exists, the entire building shall be deemed housing: Provided, That when the total floor area of a house is smaller than or equal to the total area of a house other than a house, the part other than the house shall not be deemed housing.

(15) In applying Article 155 (1) , the multi-family house falling under subparagraph 1 (c) of attached Table 1 of the Enforcement Decree of the Building Act shall be deemed one house, respectively: Provided, That where the relevant multi-family house is transferred without transferring it by partitioned part, the whole part thereof shall be deemed one house.

(3) The Housing Act;

Article 2 The definitions of terms used in this Act shall be as follows:

1. The term "housing" means all or part of a building with a structure wherein the household members may carry on an independent residential life for a long time as well as the land attached thereto, and it shall be classified into detached housing and multi-family housing;

2. The term "single-house" means a house with a structure wherein one household can reside independently within one building, and the kind and scope thereof shall be prescribed by Presidential Decree;

3. The term "multi-family housing" means housing with a structure wherein each household which jointly uses all or part of the walls, hallways, stairs, and other facilities, etc. of a building, may carry on an independent residential life respectively within one building; its kind and scope shall be prescribed by Presidential Decree;

(4) Enforcement Decree of the Housing Act

Article 2 The types and scope of detached houses under subparagraph 2 of Article 2 of the Housing Act (hereinafter referred to as the "Act") shall be as follows:

1. Detached houses under subparagraph 1 (a) of attached Table 1 of the Enforcement Decree of the Building Act;

2. Multi-user houses under subparagraph 1 (b) of attached Table 1 of the Enforcement Decree of the Building Act.

3. A multi-family house under subparagraph 1 (c) of attached Table 1 of the Enforcement Decree of the Building Act;

Article 3 (Types and Scope of Multi-Family Housing) (1) Types and scope of multi-family housing under Article 2 subparagraph 3 of the Act shall be as follows:

1. An apartment under subparagraph 2 (a) of attached Table 1 of the Enforcement Decree of the Building Act (hereinafter referred to as " apartment");

2. Ten houses under subparagraph 2 (b) of attached Table 1 of the Enforcement Decree of the Building Act (hereinafter referred to as "multi-family houses");

3. Multi-household houses under subparagraph 2 (c) of attached Table 1 of the Enforcement Decree of the Building Act (hereinafter referred to as "multi-household houses").

(5) Enforcement Decree of the Building Act

[Attachment 1]

Types of buildings by use (related to Article 3-5)

1. Home care centers, communal homes, local children's centers, and welfare facilities for older persons (excluding welfare houses for older persons) which have the form of single-user houses;

(a)(b)(a)the approximates;

(c) A multi-family house: The house which meets all the following requirements and is not an apartment house:

(i)the number of floors (except underground floor) used as housing is not more than three;

(ii)the total floor area (except the area of the attached parking lot; hereinafter the same shall apply) used for housing does not exceed 660 square meters;

(iii) 19 or less households are able to reside;

(d) (Maternity)

2. Family child-care centers, communal homes, local children's centers, welfare facilities for older persons (excluding welfare houses for older persons) and studio-type housing under Article 3 (1) of the Enforcement Decree of the Housing Act, which have the form of multi-family housing specialized in multi-family housing: Provided, That in calculating the number of floors referred to in items (a) or (b), where all first floor is used as a parking lot with the piloti structure, it shall be excluded from the number of floors, and where at least 1/2 of the floor area of the first floor is used as a parking lot in calculating the number of floors under item (c), and the remainder is used as a parking lot in calculating the number of floors, the relevant floor shall be excluded from the number of floors of the housing, and underground floors shall

(a) Apartment house: Housing with not less than five floors used for housing;

(b) Livelihood;

(c) Multi-household house: Housing whose total floor area per house used as a house is not more than 660 square meters, and the number of floors is not more than four (where not less than two Dongs are connected to underground parking lots, each Dong shall be deemed as such); and

C. Facts and determination

(1) The review data presented by this case and by the claimant are as follows:

(A) According to the “report on the completion of investigation”, the number of floors (excluding underground floors) used as a house for the requirements of multi-family house in subparagraph 1(c) of attached Table 1 of the Enforcement Decree of the Building Act is stipulated to be not more than three floors. However, the key house is that the number of floors used as a house is all 11 households with four floors, and as the number of floors used as a house is divided and registered, it is indicated that it constitutes a multi-household house, not a multi-household house to which one household can apply, and thus, it is stated that the transfer income tax was imposed.

(B) The main contents of the “collective building ledger” are as follows.

(C) According to the “total certificate of registered matters” of the housing at issue and the “collective building”, the fact that registration has been made by classification as 11 households is revealed.

(D) On February 22, 2010, the claimant was issued a new business registration certificate from the head of the OOO office. The opening date is written on February 18, 2010; the type of the business is the construction business and real estate business (business type), new construction, sale and lease (type). According to the rental business registration certificate issued by the head of OOO on September 13, 2010, the lease of 2nd floor and 4th floor (type: multi-household house, size of 40 square meters: 40 square meters). The claimant presented the key housing photo taken in July 2016.

(2) In full view of the above facts, relevant laws and regulations, etc., the claimant asserts that the key house is multi-household houses on which the key house is entered, but it is actual multi-family houses. However, the key house is four floors used for a house, and it is difficult to view the key house as multi-family houses to which the special case of one house for one household is applied pursuant to the proviso of Article 155(15) of the Enforcement Decree of the Income Tax Act because it does not meet the requirements for multi-family houses in attached Table 1 of the Enforcement Decree of the Building Act, it is determined that the disposition authority did not err in imposing capital gains tax

4. Conclusion

This case shall be decided as ordered in accordance with Articles 81 and 65 (1) 2 of the Framework Act on National Taxes because the petition for adjudication has no merit as a result of the review.