공부상 주택이라도 신축시부터 양도시까지 주거용으로 사용된 바 없고 노인요양시설로 사용되어 1세대1주택 비과세가 될 수 없음[국승]
Seoul Administrative Court 2016Gudan56878 ( October 14, 2017)
2015west 3365 (2016.03.18)
One house for one household shall not be exempted for a house on the public register, even if it was used for residence from the new construction to the transfer date, and is used as a sanatorium for older persons.
Even a multi-family house entered in the public register shall not be eligible for non-taxation for one household because it has not been used for residence from the new construction to the transfer of the elderly.
Article 154(1)1 of the Enforcement Decree of the Income Tax Act
2017Nu58795 Demanding the revocation of disposition imposing capital gains tax
KimA
O Head of tax office
National Rotations
September 28, 2017
1. The plaintiff's appeal is dismissed.
2. The costs of appeal shall be borne by the Plaintiff.
The judgment of the first instance shall be revoked. The imposition of capital gains tax of KRW 51,213,860 (including additional tax) for the Plaintiff on January 6, 2015 by the Defendant shall be revoked.
1. Quotation of judgment of the first instance;
The reasoning of the judgment of the court is as follows, and the reasoning of the judgment of the court of first instance is as stated in the reasoning of the judgment, except for the addition of the judgment of the plaintiff's assertion under Paragraph (2) below. Thus, it shall be cited in accordance with Article 8 (2) of the Administrative Litigation Act and the main sentence of Article 42
○ The Act No. 10 and No. 4 were replaced by the Act No. 10 and the Act No. 10, respectively, by the Act No. 10. 4.
Article 2 (2) 1 of the former Building Act (wholly amended by Act No. 11921, Jul. 16, 2013; hereinafter the same shall apply), Article 2 (2) 1 of the former Building Act (wholly amended by Act No. 11921, Jul. 16, 2013; hereinafter the same shall apply), Article 3-4 (1) 1 (c) of the former Enforcement Decree of the Building Act (wholly amended by Presidential Decree No. 24443, Mar. 23, 2013; hereinafter the same shall apply), Article 3-4 (4) 1 (c) of the former Enforcement Decree of the Building Act (wholly amended by Presidential Decree No. 24443, Mar. 23, 2013; hereinafter the same shall apply), Article 5, Article 6-5 (1) 1 (c) of the Enforcement Decree of the Building Act, and Article 3-4 (c) of the former Enforcement Decree of the Building Act, respectively.
"One house for one household" is replaced by "one house for one household, which is exempt from capital gains tax as provided by Article 89 (1) 3 of the former Income Tax Act" on the 3th, 7th, 10th, and 11th, respectively. In addition, the following is added to the third, fourth, following the third, fourth, of the judgment of the first instance.
B. Relevant statutes
The entries in the attached statutes are as follows.
○ The 3th sentence of the first instance judgment is replaced by the 3th sentence of the 15th sentence, and the 4th sentence of the 21th sentence is replaced by the 4th sentence.
○ In the end of the first instance judgment, the relevant Acts and subordinate statutes of this judgment shall be added.
2. Additional determination on the Plaintiff’s assertion
A. The plaintiff's assertion
Article 3-4 subparagraph 1 (b) of attached Table 1-4 of the former Enforcement Decree of the Building Act provides a kitchen and a living room for common use because the kitchen facilities can not be installed in a space independently used. In light of the fact that a common space for meals and rest is installed at the center of each floor of the building of this case, and a bath room and balcony is installed in each room, the building of this case was designed from the beginning as a multi-family house (multi-household house) under Article 3-4 of the former Enforcement Decree of the Building Act, and currently has a structure and facilities for multi-user house and maintains its function as it is, and the balcony installed in each room is fatal to the safety of dementia, middle wind patients and is not newly constructed for the purpose of the elderly care communal living house from the beginning, it constitutes a multi-family house (multi-household house) and a house subject to permission and completion inspection from the competent government office, the building of this case can be operated under the Housing Act and the Welfare of the Aged Act, and the building of this case 1 to 314.21.2
The instant building falls under multi-family house under subparagraph 1 (c) of attached Table 1 of the Enforcement Decree of the former Building Act, and does not fall under multi-user houses under subparagraph 1 (b) of attached Table 3-4 of the Enforcement Decree of the former Building Act.
In addition, according to the legal principles of evidence No. 7 and No. 8, it was found that the first 3 elderly housing facilities were located on March 10, 201 and the second 1st 2nd 1st 2nd 3rd 2nd 1st 2nd 3rd 2nd 2nd 3rd 2nd 3rd 2nd 1st 201, and the second 1st 2nd 4th 2nd 3rd 2nd 3rd 2nd 3rd 2nd 4th 1st 4th 201. 3rd 2nd 2nd 4th 1st 201. 3rd 2nd 2nd 4th 1st 1st 201. 3rd 2nd 3rd 2nd 2nd 4th 1st 201. 3rd 2nd 4th 201st 2nd 4th 2010
Since the judgment of the first instance is justifiable, the plaintiff's appeal is dismissed as it is groundless.