beta
주택 양도후 2년이 경과하여 양도한 잔존 부수토지에 대하여 1세대 1주택 비과세를 적용할 수 있는지 여부 (쟁점1 관련)

조세심판원 조세심판 | 2013-03-06 | 조심2012부5348 | 양도

【Request Number】

[Request Number] Trial Division 2012bu 5348 ( March 7, 2013)

[Items]

[C] Assignment [Type of Decision] Dispact

[Summary of Decision]

[Determination] In full view of the contents of Article 72(2) of the former Enforcement Rule of the Income Tax Act, it is difficult to apply the non-taxation for one household to the remaining land transferred after the lapse of two years after the transfer of the house

[Related Acts]

[Related Acts] Article 12 of the Value-Added Tax Act

【Reference Decision】

[Reference Decision]OOOOOOO

【Disposition】

The appeal is dismissed.

【Reasoning】

1. Summary of disposition;

A. On November 12, 2009, an applicant transferred a part of a site (96 square meters) and a house (hereinafter referred to as “sub-point housing”) among 00 square meters of an O site acquired on August 20, 1968, and agreed on November 12, 2009, and transferred the remaining land (hereinafter referred to as “sub-point land”) to OO on June 13, 2012, and reported and paid transfer income tax (OO) on the key land on July 25, 2012, and filed a claim for rectification of transfer income tax paid on September 4, 2012, deeming that the key land falls under non-taxation as one appurtenant land for one household.

B. The disposition agency notified the claimant on September 27, 2012 that it cannot accept the claim for correction on the ground that the land at issue is transferred after two years from the date of the consultation on the key house under the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects ( November 21, 2009).

C. The claimant appealed and filed an appeal on November 29, 2012 after filing an objection on October 10, 2012.

2. Opinions of the claimant and disposition agency;

A. The claimant's assertion

While the claimant has been holding the key house and the key land as one house for one household from 1968, the claimant shall consult and transfer the key land to OO on November 21, 2009, and the land at issue was transferred to OO on June 11, 2012 when two years have passed since 2 years have passed since OO, but the key land was merely two years have passed since 8 months have passed since the transfer of the key house was incorporated into the road due to the change of urban planning on July 5, 2010 when the change of the business plan was announced, it is improper that the claimant bears the transfer income tax on the key land.

The non-taxation on the remaining land transferred to "within two years after the expropriation of the house under Article 72 (2) of the Enforcement Rule of the Income Tax Act was amended on June 29, 2012 as "within three years" on the basis of the amendment on the basis of the difference between the non-taxation and 18 days (the date of the date of the transfer of the land in dispute, June 11, 2012; June 29, 2012, the enforcement date of the Enforcement Rule) and the non-taxation on the remaining land shall not be applied. The two years (or three years) shall not be deemed as one transaction in the case of the expropriation of the house and the incidental land, not the peremptory period, so it is improper to limit the number of years for one household to two years at the time of the application of one house. Since the date of the receipt of compensation for the obstacle transferred with the land in question (the date of July 2, 2012) is within three years after the consultation and transfer of the house, and since the claimant resides resides in the issue to this day, it shall be recognized non-taxation for one household.

(b) Opinions of disposition agencies;

The key land is subject to taxation since it was separately transferred on June 13, 2012, when two years have passed since the first expropriation on November 12, 2009, pursuant to Article 154(1)2(a) of the Enforcement Decree of the Income Tax Act. Since the obstacles to the receipt of the balance on July 29, 2012, which was after the amendment of the Enforcement Decree of the Income Tax Act on June 29, 2012, are unrelated to the key land, it is justifiable to reject a request for correction by the claimant.

3. Hearing and determination

A. Key issue

(1) Where part of the house and the appurtenant land are purchased by consultation or transferred by agreement after the lapse of two years (after November 12, 2009), whether the remaining land is eligible for non-taxation for one household as the appurtenant land for a house, if it is transferred by agreement after the lapse of two years (after June 13, 2012).

(2) Whether the receipt date of compensation for obstacles to the issues and land which are remaining land can be seen as the transfer date of the key land

B. Facts and determination

(1) We examine issues ①.

(A) Article 89(1)3 of the Income Tax Act, Article 154(1)2 (a) of the Enforcement Decree of the same Act, and Article 72(2) of the Enforcement Rule of the same Act, where a house is purchased by consultation or expropriated pursuant to the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects, the relevant house (including floating land), and the remaining land and remaining house (including floating land) transferred within two years from the date of such transfer or expropriation shall not be subject to the restriction of one house holding period for one household (three years). In Article 72(2) of the Enforcement Rule of the same Act, the remaining land and remaining house transferred within two years have been amended to the “ residual land and remaining house transferred within three years” (Ordinance of the Ministry of Strategy and Finance No. 293) on June 29, 2012 (the Ordinance of the Ministry of Strategy and Finance No. 293).

(B) According to the certificate, etc. of the fact of expropriation of land, etc. of OO, the claimant appears to have transferred the housing at issue to OO on November 12, 2009 by means of OO(OO, January 12, 2006). As the land at issue is additionally incorporated into the project district by OO(OO, July 5, 2010), it appears that the claimant has received the ownership transfer registration on June 13, 2012 and the compensation (OO) on June 19, 2012.

OO

(C) Examining the purport of the relevant provisions, where the land attached to one house for one household is transferred in installments, the land of the transferred part shall not be deemed the land attached to one house for one household as stipulated in Article 89 subparag. 3 of the Income Tax Act. However, even in this case, where part of the house and its appurtenant land is purchased by consultation or expropriated under the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects and expropriated under other Acts, the relevant house (including sub-land), and the remaining land and remaining house (including sub-land), which are transferred within two years from the date of its transfer, shall be deemed as one house for one household and are exempt from capital gains tax. In order to be subject to non-taxable income, income accrued from the transfer of the land annexed to one house for one household shall be settled on the land at the time of the transfer, but if the remaining land which remains inevitable due to the removal of the land due to the execution of the previous public works, etc. are transferred within a certain period, the special exception on capital gains tax on one house for one household shall be applied.

However, even in this case, it is difficult to view that the appurtenant land is transferred after the lapse of a long-term period from the time when the appurtenant land is removed or destroyed and the appurtenant land is located in the site, and therefore, it is reasonable to regard the transfer of the appurtenant land only when the appurtenant land is transferred within the prescribed period of two years, i.e., the period recognized as the appurtenant land within the two-year period. Unless special exceptions are acknowledged in the related Acts and subordinate statutes, deeming that it is impossible to receive non-taxation benefits if the remaining appurtenant land is transferred after the lapse of two years from the date of expropriation of the previous house can be regarded as the peremptory period of two-year period, i.e., the legislative purport of the provision on non-taxation of one house for one household (the same purport is the same).

(D) The claimant asserts that the land at issue is incorporated into a road as a result of a revision of the business plan on July 5, 2010, which is eight months after the land at issue was transferred through consultation on the housing at issue (on November 12, 2009), and that the land at issue should be deemed land appurtenant to the housing at issue. However, it is reasonable to deem the date of the transfer of the land at issue as June 19, 2012, which is the date the compensation is paid pursuant to Article 98 of the Income Tax Act. This does not fall under “the remaining land transferred within two years” under Article 72(2) of the Enforcement Rule of the Income Tax Act, and the provisions of the Enforcement Rule of the same Act amended as “three years” apply to the land first transferred after the amendment (on June 29, 2012), and thus, the land at issue does not fall under the land at issue as the land at issue.

(2) As to the issue ②

The claimant asserts that the date of the receipt of obstacles compensation (as of July 2, 2012) falls under the " residual land transferred within three years" under Article 72 (2) of the Enforcement Rule of the Income Tax Act amended on June 29, 2012 as the date of the transfer of the disputed land. However, according to the "written confirmation of the fact of expropriation of land, etc." of the Korea Land and Housing Corporation, the obstacle that the claimant received compensation on July 2, 2012 (including 30.6 square meters and 4 cases, etc.) is located within the OO and it is difficult to recognize the date of the receipt of the obstacles compensation as the date of the transfer of the disputed land.

Therefore, it is judged that the disposition authority did not correspond to the land annexed to the housing at issue, and that there is no error in the disposition rejecting the refund of the tax amount already paid.

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 a trial has no merit as a result of the review.