[양도소득세부과처분취소][집28(3)행,102;공1981.1.15.(648) 13408]
Cases where one house for one household is transferred by dividing into two or more houses, and the transfer income tax; and
The purpose of Article 15(3) of the Enforcement Decree of the Income Tax Act (Presidential Decree No. 8351, Dec. 31, 1976) and Article 6(2) of the Enforcement Rule of the same Act (Ordinance of the Ministry of Finance and Economy No. 1233, Feb. 23, 1977) is that where a house deemed as one house for one household is transferred by dividing it into two or more houses, the first transferred part of the building in which there is one house for one household shall be regarded as one house for one household, and thus the transfer income tax shall be levied on the remaining part, but the remaining part of the house shall be regarded as one house for one household, and the ratio of
Article 15(3) of the Enforcement Decree of the Income Tax Act (Presidential Decree No. 8351 on December 31, 1976), Article 6(2) of the Enforcement Rule of the Income Tax Act (Presidential Decree No. 1233 on February 23, 1977)
Plaintiff
Kim head of the tax office
Gwangju High Court Decision 78Gu85 delivered on March 6, 1980
The judgment below is reversed and the case is remanded to the Gwangju High Court.
The grounds of appeal are examined.
1. According to the reasoning of the judgment below, the plaintiff purchased 176 square meters on December 31, 1964 ( Address 1 omitted), and sold part of the above site to the non-party 1, 2, and 1, 218 square meters on the ground (No. 1, 2, 3, 4 square meters on the building site), which are the main building alleged by the plaintiff, at around 1966, and 1, 218 square meters on the ground (No. 1, 2, 3, 4 square meters on the building site), and constructed a 1,5 square meters on the building site and sold part of the above building site to the non-party 1, 1964, and according to the Enforcement Rule of the Income Tax Act (No. 2, 318 square meters on the building site and No. 4, 68 square meters on the building site) and the plaintiff's sale of the above building site to the non-party 1, 1976, and the non-party 1, 2, 3.
However, if the area of a house is smaller than or equal to the area of a house other than the house, a building other than the house area shall not be deemed a house. In light of the above facts, if the plaintiff transferred to the non-party 2 in the light of the above facts, it is evident that even if only the building, which is the main building, has been registered for ownership transfer in the name of the non-party 2, the construction of the building built for the purpose other than the building, such as an appurtenant building, warehouse, and place of business, is 15 square meters and more than the house area, and therefore, it is obvious that the construction of the building built for the purpose other than the above non-party 2, 2, and 21 square meters, calculated pursuant to Article 15(4) of the Enforcement Decree of the Income Tax Act, does not belong to the scope of the so-called house.
2. In case where there is a building for other purposes such as a store, etc., or where there is a building for other purposes such as a house on the same lot number, in accordance with Article 15 (3) of the Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 8351, Dec. 31, 1976), the whole house shall be
However, the court below determined that a building other than a house shall not be deemed a house if the area of the house is smaller than or equal to that of the house other than the house area. According to the court below's determination, the plaintiff owned 176 square meters prior to the division ( Address 1 omitted) and owned 176 square meters on the ground, one house per 9 square square meter, one house for warehouse 1 square meter 87 square meters, one house for warehouse 4 square meters, and one house for 68 square meters, one house for 5 square meters under the above provision. Thus, if the house is transferred to the non-party 1, one house for one household shall be regarded as a house for the transfer of the above building, and if the house is transferred to the non-party 2, one house for the transfer of the above building site shall be regarded as one house for the transfer of the non-party 1 and one house for 123 square meters under the latter part of Article 6 (2) of the Enforcement Rule of the same Act (amended by Ordinance of the Ministry of Finance and Economy No. 123, one of the above housing site omitted).
The reason is that if the entire house was transferred without dividing it in the case of this case, it is unreasonable to view that the part belonging to the scope of non-taxation does not receive any benefit of non-taxation, as it is for the reason that the entire house was transferred by dividing the non-taxation benefits into the total capital gains.
However, the judgment of the court below that the defendant's disposition of this case by imposing capital gains tax on the building other than a house and the land of the occupancy ratio is legitimate on the premise that the housing area of the remaining portion after division and transfer is less than that of the non-housing area and it does not belong to the category of one house for one household. Thus, the judgment of the court below is not unlawful, and it is obvious that the illegality affected the result of the judgment. Therefore, it is reasonable in this regard.
Therefore, the judgment of the court below is reversed and it is so decided as per Disposition by the assent of all participating Justices.
Justices Jeong Tae-won (Presiding Justice)