Article 5 (Registration of Value-Added Tax Act)

2. The costs of lawsuit shall be borne by the Plaintiff.

A. On May 6, 2008, the Plaintiff transferred the instant rental house owned by it to a third party, and reported and paid capital gains tax of KRW 25,447,110 by applying the general tax rate of 36%, deeming the instant rental house to be a long-term rental house excluded from the calculation of three houses for one household under Article 167-3 of the Enforcement Decree of the Income Tax Act, and the Defendant additionally imposed and notified capital gains tax of KRW 1,679,70, while the amount of tax was erroneous.

B. In other words, the Defendant again held that the instant rental house did not meet the requirements for long-term rental houses under Article 167-3 of the Enforcement Decree of the Income Tax Act, and could not be excluded from the calculation of three houses for one household, and that the instant rental house transfer of the instant rental house constitutes three houses for one household, and calculated capital gains tax by applying 60/100 of the mid-term possession special deduction and the general tax rate, excluding the application of the special long-term holding deduction and the general tax rate, and then issued the instant disposition to the Plaintiff on January 14, 2009, which additionally imposes capital gains tax of KRW 61,86,580 on the Plaintiff for the year

[Basis] Evidence Nos. 1, 2, 4, 8, 9, 10, Eul evidence Nos. 1-3, Eul evidence Nos. 3, Eul evidence Nos. 4-1 and 2, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) It was true that the Plaintiff: (a) registered a rental business operator under Article 6 of the Rental Housing Act as well as a rental business operator under Article 168 of the Income Tax Act until June 30, 2004, which is a business base date for the existing business operator; (b) registered a rental business operator on November 15, 2004 under Article 6 of the Rental Housing Act; and (c) registered a business operator on May 29, 2006 under Article 168 of the Income Tax Act; (d) however, if the Plaintiff imposed a heavy taxation on a taxpayer who has no real estate speculation purpose solely on the ground that the Plaintiff failed to meet the formal requirements prescribed by the Enforcement Decree of the Income Tax Act, even if the Plaintiff violated the requirements prescribed by the Enforcement Decree of the Income Tax Act and did not impose fair taxes on all taxpayers; (b) thus, the instant disposition was unlawful without considering such facts.

(2) On May 23, 2006, the Defendant sent to the Plaintiff a document stating that “I, by June 1, 2006, obtain benefit from the exclusion of aggregate rental housing from the comprehensive real estate holding tax in 2006, the Plaintiff shall make the registration of the rental business and the registration of the business in the tax office, respectively, to the Si/Gun/Gu office until June 1, 2006.” Since the Plaintiff reported the business registration under Article 168 of the Income Tax Act on May 29, 2006, the instant disposition, which was conducted without protecting the Plaintiff’s trust which delayed the registration of the business under the Income Tax Act, is unlawful as it goes against good faith.

(b) Related statutes;

It is as shown in the attached Form.

(c) Fact of recognition;

(1) On May 6, 2008, the Plaintiff owned a total of 5 bonds as indicated below, resided in a house of 1 bonds, and leased 4 bonds including the instant rental house. The Plaintiff transferred the instant rental house to a third party.

(2) On November 15, 2004, the Plaintiff registered as a rental business operator under the Rental Housing Act with the above 4th house as a rental housing. On May 29, 2006, the Plaintiff registered the business under the Income Tax Act with the type of business "real estate" type as the "lease of housing."

[Reasons for Recognition] The descriptions of Evidence Nos. 4, 10, Eul Nos. 5 and 6, and the purport of the whole pleadings

D. Determination

(1) Judgment on the Plaintiff’s assertion

Article 167-3 (1) of the Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 20931, Jul. 24, 2008; hereinafter the same) excludes the housing falling under three or more houses for one household as prescribed by the Presidential Decree from the "housing falling under three or more houses for one household as prescribed by the Presidential Decree", and the scope of the "house for long-term lease" is defined as the housing of the resident who has registered the business under Article 168 of the Income Tax Act and the lease business under Article 6 of the Rental Housing Act in addition to the specific requirements. However, as of October 29, 2003, when the resident who has registered the lease business under Article 6 of the Rental Housing Act but fails to make the business under Article 168 of the Income Tax Act has made the business registration under the above provision until June 30, 2004, the rental housing shall be deemed to have been registered under Article 168 of the Income Tax Act on the date of the lease business under Article 6 of the Rental Housing Act.

According to the above provisions, in order for a person who leases a four-loan house as in the case of the plaintiff to constitute a long-term rental house, he shall meet the requirements for business registration under Article 168 of the Income Tax Act until October 29, 2003, along with a lease business operator registration under Article 6 of the Rental Housing Act, at least June 30, 2004. As above, as recognized by the plaintiff, the plaintiff is registered as a lease business operator under Article 6 of the Rental Housing Act on November 15, 2004 and registered as of May 29, 2006 under Article 168 of the Income Tax Act, so the rental house in this case does not constitute a "long-term rental house under the Enforcement Decree of the Income Tax Act", and it does not constitute a "long-term rental house under Article 168 of the Income Tax Act" and it does not constitute a "house falling under at least three houses for at least one household.

The above provision is a requirement for a long-term rental house, and the purpose of which is to facilitate the identification of the business of the person liable for tax payment and the person liable for tax payment and to promote the convenience of taxation administration, such as securing the basis taxation and securing the tax revenue, and further to realize fair taxation. Thus, even if the substance of the rental business entity is identical, it cannot be deemed as violating the equity by making the contents of taxation differently depending on whether the requirements for business registration under the Rental Housing Act and the Income Tax Act are met. The fact that the rental business entity registered on November 15, 2003, which is the preexisting business base date, under Article 6 of the Rental Housing Act, is recognized as having been long earlier than the preexisting business base date, and it is evident that the pre-existing rental house fails to meet the requirements for the pre-term rental house, and the Plaintiff’s assertion that the pre-existing rental house did not affect the pre-existing rental house’s business registration under Article 168 of the Income Tax Act cannot be seen as having affected the Plaintiff’s business registration under Article 2616 of the Enforcement Decree.

(2) Judgment on the Plaintiff’s assertion

Even according to the plaintiff's assertion itself, the contents of "Written Reference to Guidance for Business Registration of Unborn Rental Housing," which the defendant sent to the plaintiff, "I will make business registration in the Si/Gun/Gu office with the rental business operator registration until June 1, 2006, in order to benefit from aggregate exclusion of rental housing in the comprehensive real estate holding tax in 2006." This is a general guidance about the comprehensive real estate holding tax for the rental business operator, and there is no relation with the fact that the rental house in this case can be omitted from the subject of heavy taxation when calculating the transfer income tax. Thus, it cannot be said that the defendant expressed any public opinion that the rental house in this case is trusted in relation to the transfer income tax in this case. Thus, the plaintiff's assertion that the defendant committed acts contrary to the principle of trust protection, etc

3. Conclusion

Thus, the disposition of this case is legitimate, and the plaintiff's claim seeking the revocation of legitimate disposition of this case is dismissed as it is without merit.