잔금지급일 이전에 미리 매도인에게 잔금을 지급하여 1세대 3주택자에 해당함[국승]
Seoul Administrative Court 201Gudan832 (O2, 102)
Cho High Court Decision 2010Du3067 ( December 17, 2010)
be paid to the seller in advance prior to the payment date of the balance and shall be deemed to constitute a 3-resident for one household.
The remainder is paid to the seller in advance before the payment date of the remainder from the broker or from the broker before the remainder is made. Therefore, the seller does not constitute three housing owners at the time of the transfer of the house. However, there is no evidence to acknowledge it, and even when the registration date is the time of acquisition, the owner of three housing owners at the time of transfer of the
Article 155 of the Enforcement Decree of Income Tax Act
2012Nu6751 Revocation of disposition of imposing capital gains tax, etc.
Category XX
Head of Seocho Tax Office
Seoul Administrative Court Decision 2011Gudan832 decided February 10, 2012
May 16, 2012
May 30, 2012
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 defendant's refusal to correct the capital gains tax against the plaintiff on September 6, 2010 shall be revoked.
1. cite the judgment of the first instance;
The reasons for this court's decision are as follows: (a) the first instance court's decision is to delete the fifth to the eighth to the fifth to the fifth to the eighth to the fifth to the fifth to the fifth to the fifth to the fifth to the third; and (b) the second to add a judgment on the matters for which the plaintiff continues to assert in this court is identical to the reasons for the first instance court's decision; (c) therefore, the part is filled
2. The plaintiff's assertion and its determination
A. The plaintiff principal
The instant refusal disposition is unlawful for the following reasons.
1) Claim regarding the date of settlement of price
The Plaintiff did not agree to change the remainder payment date of the instant third house to November 3, 2009 or lend the remainder from the intermediaries to the seller of the instant third house on November 3, 2009, and paid the remainder directly to the seller of the instant third house on November 3, 2009. The actual payment date for the instant third house is November 11, 2009, which received the remainder payment for the instant third house, and paid the remainder payment for the purchase of the instant third house.
2) The assertion that temporary one household should be considered as two houses for legislative purpose
The Plaintiff owned the instant housing No. 1 for 10 years, and did not sell it for speculative purposes, and the remaining date under the sales contract of the instant housing No. 3 is not changed due to the reasons attributable to the Plaintiff. Therefore, in light of the purport of capital gains tax imposed as a means of suppressing real estate speculation, Article 155(1) of the Enforcement Decree of the Income Tax Act shall also be applied to this case
B. Determination
1) As to the assertion regarding the date of settlement of price
Even if the Plaintiff’s written evidence Nos. 24 through 26 submitted to this court, it is insufficient to reverse the first instance judgment, and to recognize the actual payment date for the third house of this case as November 11, 2009, as alleged by the Plaintiff.
Meanwhile, Article 162(1)2 of the Enforcement Decree of the Income Tax Act provides that the date of receipt of the registration recorded in the register shall be deemed the date of acquisition in cases where the registration of ownership transfer was made before the settlement of price. Thus, even if the date of settlement of price is deemed to be November 11, 2009, the date when the Plaintiff acquired the third house of this case becomes the date of receipt of the registration, which is November 4, 2009, and the fact that the Plaintiff is the third house owner at the time of transfer of the first house of this case is not changed (the Plaintiff did not delegate the above registration application, but there is no evidence to acknowledge it).
This part of the Plaintiff’s assertion cannot be seen as a mother or acceptable.
2) As to the assertion that temporary one household should be considered as two houses in accordance with the legislative intent
The Plaintiff’s assertion in this case cannot be accepted solely on the ground that there is a reasonable ground to analogically apply the special provisions on non-taxation of two houses for one household temporarily stipulated in Article 155(1) of the Enforcement Decree of the Income Tax Act just because it is alleged by the Plaintiff.
3. Conclusion
The judgment of the first instance is justifiable. The appeal filed by the Plaintiff shall not be accepted as groundless.