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상속주택을 포함하여 3주택 보유시 일시적 1세대 2주택 비과세 특례 적용 여부

조세심판원 질의회신 | 2017-09-17 | 서면-2017-부동산-1931 | 양도

Document Number

Document-2017-Real Estate-1931 (No. 18, 2017)

Items of Taxation

Transfer

Journal

When one household possessing inherited house and other house acquires another house after the lapse of one year from the date of acquisition of the general house, and transfers the general house within three years from the date of such acquisition, it shall be considered as one house for one household.

Related statutes

Article 89 of the Income Tax Act / Article 155 of the Enforcement Decree of Income Tax Act

Main text

* Related reference materials

1. A summary of the contents of inquiry;

○ Facts

-201A and her husband B acquire A's house located in Seoul Metropolitan City under joint title (50 million won acquisition value, 600 million won, currently residing).

-B, 201.01.01, 201, obtained by inheritance B, located in the Seoul Metropolitan City Mana

-A and B husband B, 2017.08.18. 201, shall acquire C house under the joint name of both husband and wife (1.1 billion won in acquisition value);

- Estimated transfer of A house on October 30, 2017 (830 million won)

○ Contents of questioning

Where a person acquires a house B from a decedent who is a separate household during the possession of a house A and transfers a house A within three years from the date of acquisition of the house C, whether the special case of non-taxation for one household shall be applied.

2. Materials on the contents of questioning;

(a) relevant tax laws and regulations (law, enforcement decree, enforcement rule, basic rules);

○ Article 89 of the Income Tax Act 【Non-taxable Capital Gains】

(1) No income tax on capital gains (hereinafter referred to as "capital gains tax") shall be levied on the following incomes:

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 household possesses one house, which satisfies the requirements prescribed by Presidential Decree;

○ Enforcement Decree of the Income Tax Act Article 155 (Special Cases concerning One House for One Household)

(1) Where one household having one house in the Republic of Korea comes to temporarily possess two houses by acquiring another house (including cases where it acquires by constructing a new house by itself) before transferring the relevant house (hereafter referred to as "previous house" in this paragraph), if it acquires another house after at least one year has elapsed from the date of acquiring the previous house, and transfers the previous house within three years from the date of acquiring such another house (including cases falling under any ground referred to in paragraph (18)), it shall be deemed one house for one household, and Article 154 (1) shall not apply to the requirements for acquiring another house after the lapse of one year from the date of acquiring the previous house, and where part of the previous house and appurtenant land are purchased by consultation or expropriated pursuant to Article 154 (1) 2 (a) and where it transfers the relevant remaining house and appurtenant land within five years from the date of transfer or expropriation, the relevant remaining house and appurtenant land shall be deemed to be included in the transfer or expropriation of the previous house and appurtenant land.

(2) Where one household which owns inherited house and one house in Korea respectively transfers general housing, the household shall be deemed to own one house in Korea and Article 154 (1) shall be applicable: Provided, That in cases where the heir and the predecessor are one household at the time of commencing an inheritance, the person who owns one house and forms one household shall be deemed to possess two houses due to the combination of households in order to care for a lineal ascendant (including the lineal ascendant of his/her spouse, and limited to cases where either of the lineal ascendants or all of the lineal ascendants is 60 years old or older as of the date of joining the households, and one house is owned by one person among the lineal ascendants as of the date of joining the households) by living together, and only the house which has been owned before such consolidation (hereafter the same shall apply in paragraphs (3) and (7) 1 and Article

1. One house for which the possessing period by the decedent is the longest;

2. Where two or more houses are the same, the house in which the predecessor has resided the longest;

3. Where there are two or more houses in which the predecessor has owned and resided, one house in which the decedent has resided at the time of the commencement of the inheritance.

4. One house whose standard market price is highest (when the standard market prices are the same, one house chosen by the heir), when there are two or more houses in which the decedent has never resided, and for which the possessing periods are the same.

(3) In applying Article 154 (1), when a house other than a house jointly inherited (referring to one house owned by several persons owing to inheritance, and when an ancestor has owned two or more houses at the time of commencing an inheritance, referring to one house according to the order under each subparagraph of paragraph (2)), the relevant house jointly inherited shall not be deemed the house of the relevant resident: Provided, That this shall not apply to an heir who has the largest inheritance shares, and where there are two or more heirs having the largest inheritance shares, a person falling under any of the following subparagraphs among those who have the largest inheritance shares shall be deemed to possess the relevant house jointly inherited in

1. A person who resides in the house concerned;

2. and 2. Deleted;

3. The oldest person.

(b) Similar cases (judicial precedents, judicial precedents, review precedents, and established rules);

○ Documents-2016-Real Estate-2944, 2016.31

1. When one household possessing each one of the inherited housing (A) and other housing (B) falling under Article 155 (2) of the Enforcement Decree of the Income Tax Act acquires another house after the lapse of one year from the date of acquisition of the general housing, and transfers the general housing within three years from the date of acquisition of such another house, such household shall be deemed one house for one household, and Article 154 (1) of the Enforcement Decree of the Income Tax Act shall be applicable;

2. If the previous house (A) is transferred within 3 years from the date of acquisition of another house (C) after the transfer of the general house (B) in the above 1, after the lapse of one year from the date of acquisition of the inherited house (previous house and A), the previous house (A) shall be considered as one house for one household, and the Enforcement Decree of the Income Tax Act shall be regarded as one house for one household.

○ Documents-2015-Real Estate-2192, November 30, 2015

1. Where one household adds a new house under the condition that it owns both the inherited house and other house (from the division acquired and transferred after February 15, 2013, to the time of commencing the inheritance; hereinafter referred to as "ordinary house") provided for in Article 155 (2) of the Enforcement Decree of the Income Tax Act and one house in Korea, the gains on transfer shall be calculated in accordance with Article 160 (1) of the same Decree;

2. Where several persons jointly own one house, each co-owner shall be deemed to own the house in calculating the number of houses except as otherwise provided for in the Enforcement Decree of the Income Tax Act, and Article 89 (1) 3 of the Income Tax Act shall be applied.

○ Management of Real Estate Transactions-373, 2012.16

The household which owns one house in Korea shall be subject to Article 155 (2) of the Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 23218, Oct. 14, 201) and another house (where previous house is transferred within two years from the date of acquisition of another house from a separate household, such house shall be considered as one house for one household, and Article 154 (1) of the same Decree shall be applicable.