2. The plaintiff's remaining claims are dismissed.

3. 1/10 of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

Cheong-gu Office

The Defendant’s imposition of capital gains tax of 201 on January 5, 2012 against the Plaintiff shall be revoked.

A. On January 31, 2011, the Plaintiff transferred the 157.14 square meters of a house combined with OO-dong O-dong 79-3 square meters (hereinafter “instant house”) and 638.6 square meters of the appurtenant land to OOB to OOB.

B. On the premise that the area of the instant housing exceeds the area other than the area of the instant housing, the Plaintiff reported and paid the amount exceeding KRW 900 million as the subject of taxation, on the premise that the said area exceeds the area other than the said area.

C. On January 5, 2012, the Defendant excluded non-taxation on non-taxation on non-taxable portions other than the instant housing on the premise that the area other than the instant housing exceeds the area of the housing, and issued the instant disposition that corrected and notified ○○○○○○ in the transfer income tax reverted to year 201.

D. On October 25, 2012, the Plaintiff filed an objection and filed a request with the Tax Tribunal for a trial on October 25, 2012, but was dismissed on May 9, 2013.

Facts that there is no dispute with recognition, Gap Nos. 1, 2, 7, Eul Nos. 1 and 2, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) In order to determine the housing portion on the register of the instant housing as a commercial building, there should be a structural change corresponding thereto. Since each of the following parts assessed by the Defendant as a commercial building did not have any structural change, it is limited to a part of a room where a house necessary for residence was located between July and September 21:00 and a part of a room where a house necessary for residence was used for some customers, it constitutes abuse of discretionary power to determine it as a commercial building in light of the period of use, the area of use, etc.

2) 별지 도면 표시 ⓐ 부분(이하 별지 도면 표시 ⓐ 내지 ⓚ까지를 지칭할 때는 별지 도면 표시 부분을 생략하기로 한다)에 관하여, ⓐ 부분은 주택으로 인정된 부분인 ⓑ 부분 및 ⓒ 부분과 인접해 있는 욕실로서 이는 ⓑ, ⓒ 부분을 반드시 거쳐야만 들어갈 수 있는 곳이므로 주택으로 보아야 한다.

3) As to item (b) and (c) above, since the sum, which is the area of each of the above parts, is calculated as 15.5 square meters, it is calculated as 14.84 square meters, the calculated error portion shall be added to the housing and the area shall be calculated accordingly.

4) Section (d)-1 is used for the purpose of the housing on the same line as the housing section (a), (b), and (c). This section must also be added to the housing area.

5) The area of 13.84 square meters which is assessed as a commercial building among the underground spaces is the area calculated pro rataly. As long as this part is not calculated by the actual survey, it is unlawful to regard this part as a commercial building and calculate the area.

(b) Related statutes;

It is as shown in the attached Form.

(c) Fact of recognition;

1) On September 3, 1985, the Plaintiff completed the registration of ownership transfer on the instant housing and its appurtenant land due to a property inheritance by a division under consultation made on July 20, 1985. On May 24, 2003, the Plaintiff extended the 15 square meters adjacent to C consent.

2) On November 3, 1998, the Plaintiff’s spouse CC operated a restaurant business (slocks) using part of the instant housing on a part of the instant housing.

3) The Defendant calculated the housing and commercial area of the instant housing among the instant housing according to the content of the public announcement of the individual housing price of the branch office of the branch office and the survey table of the characteristics of the housing, and the annexed area among the details of housing management was divided according to the ratio of the area of the residential and nonresident.

4) The Defendant’s classification of areas other than the instant housing is as follows.

5) On the other hand, the instant housing (A, B, and C) was destroyed on October 19, 201.

Facts without any dispute arising in recognition, Gap's evidence Nos. 1, 3, 7, 11, 13, Eul evidence Nos. 2, 4, and 5 (including any number); the inquiry results on the branch office of the party branch office; the witness's testimony and the purport of the whole arguments

D. Determination

1) Determination of whether a building constitutes a house under Article 89(1)3 of the Income Tax Act and Article 154(1) of the Enforcement Decree of the same Act shall be made by whether the actual purpose of use is a building actually being used for residence regardless of the usage classification of injury to the building. In the case of a building where its structure, function, or facility is in a state suitable for residence as its original residential purpose and its residential function is maintained and managed as it is, and at any time, a building can be used as a house (see Supreme Court Decision 2004Du14960, Apr. 28, 2005). However, determination of whether the building is a residential purpose or a business use should be made in full (see Supreme Court Decision 2004Du14960, Apr. 28, 2005). In addition, even if a part of the building is not a permanent residential purpose, if it is used for a residence attached to the building

2) Comprehensively taking into account the health stand as to Section (d)-1 and the overall purport of the evidence and arguments as seen earlier, according to the results of the survey conducted by the survey by the survey by the characteristics of the housing in this case and by the housing survey table, it can be recognized that the part was used for the purpose of restaurant. According to the above legal principles and the above recognition facts, it is reasonable to view that the part is identical to the part determined as a house, even if it is on the same line with

3) In a case where the incidental facilities of a building, which is included in the calculation of the total floor area of a building as a commercial building among the underground areas, fall under the common facilities of a building for other purposes, the incidental facilities shall be calculated in accordance with the ratio of the area of a house and a building for other purposes (see, e.g., Supreme Court Decision 96Nu16254, Apr. 25, 1997). In light of the foregoing legal doctrine, it is lawful to include the portion corresponding to the area of a commercial building as to the underground area as the area of a commercial building, so the Plaintiff’s assertion on this part is not acceptable.

4) On the other hand, there is no dispute between the parties as to the facts calculated by calculating the sum of the area of the Health Zone, the foregoing item (a), (b), and (c) as the area of 15.5 square meters, even though the sum of the area of 14.84 square meters, and the part of the said item (c) is calculated as the area of the commercial area. In addition, in light of the legal principles as seen earlier and their location and shape, it is reasonable to view the part of the (a) as the area of the residential area, and as the place of the same use as the residential area, the area of the commercial area, which is the housing area, is located in the area of the commercial area. Therefore, the part calculated as the area of 0.

If capital gains tax to be paid by the Plaintiff in connection with the transfer of the instant house by calculating each of the above parts as the housing area, is calculated, the portion of capital gains tax to be paid by the Plaintiff, such as the written resolution of decision on capital gains tax, is unlawful as it is the total amount of OOOO members of capital gains tax and additional OOO members of additional tax, and ultimately exceeds OOO members of the instant disposition (total determined tax amount - OOO members of the tax amount paid by the Plaintiff, and 10 won of the tax amount paid by the Plaintiff).

3. Conclusion

Therefore, the plaintiff's claim is accepted within the scope of the above recognition, and the remaining claims are dismissed as it is without merit. It is so decided as per Disposition.