Seocho 2018west 2003 ( October 30, 2018)

The excess land of the standard area of a high-priced house for one household shall be deemed land for non-business use and shall apply the heavy taxation rate.

It is reasonable to limit the scope of application of the special provisions of this case by interpreting only the land of the area calculated in accordance with Article 89(1)3 of the former Income Tax Act and Article 154(7) of the former Enforcement Decree of Income Tax Act with respect to land attached thereto in a high-priced house (including land attached thereto) of Article 95(3) of the former

Article 89 of the former Income Tax Act (Non-taxable Capital Gains)

Article 95 of the former Income Tax Act (Transfer Income Amount)

2018Gudan74696 Revocation of Disposition of Imposing capital gains tax

AA

a) the Director of the Tax Office

June 18, 2019

September 10, 2019

1. The plaintiff's claim is dismissed.

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

Of the disposition of imposition of capital gains tax (including additional tax) against the plaintiff on January 4, 2018 by the defendant, the part exceeding x won shall be revoked.

1. Details of the disposition;

(a) Acquisition and transfer of the house;

(1) On March 18, 2014, the Plaintiff acquired 497/197/19 of 1919 square meters of the Seoul XX-dong forest and 1919 square meters of forest land (hereinafter “the instant building”). BB acquired 1422/19 of 1919 of the aforementioned forest and forest land on the same day. The instant housing building was located on the entire land of the instant case on April 2, 2015. The instant forest and forest and forest are XX Dong x 1737 square meters of forest and forest land (hereinafter “the entire land”). The instant housing building was located on the entire land of the instant case.

The entire land of this case and the building of this case and the building of XXJ-2 land of this case were transferred through consultation with Seoul Special Metropolitan City on June 16, 2015. Of the entire land of this case, 317,527,230 won for the Plaintiff’s share (449.87m2 if converted into the area; hereinafter “instant share”) among the entire land of this case, 41,480,000 won for the building of this case, and 32,068,190 won for the Plaintiff’s share among the land of this case, and 32,068,190 won for the building of this case among the land of this case, from among the MW-2 land of this case, compensation for the Plaintiff’s share was paid.

B. Report of transfer income tax and disposition by the defendant

(1) On August 31, 2015, the Plaintiff: (a) calculated each transfer margin of KRW 146,398,783, 34,448,320 on the premise that the transfer of the instant shares and the instant housing building constitutes one house for one household; and (b) did not be subject to taxation in full while calculating the transfer margin of KRW 14,137,637 on the land of XX-2, the Plaintiff paid capital gains tax of KRW 4,65,050 on the basis of the heavy taxation rate of the Plaintiff’s share of land for non-business.

D. The Defendant: (a) deemed that the transfer of the instant shares and the instant housing building constitutes one house for one household and the transfer of land appurtenant thereto, which exceed KRW 900,000,000; (b) however, in calculating gains on transfer and tax amount, Articles 89(1)3 (a) and 95(3) of the former Income Tax Act (amended by Act No. 13426, Jul. 24, 2015; hereinafter the same shall apply); (c) Articles 154(1), 156(1), and 160(1) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 26600, Oct. 23, 2015; hereinafter the same shall apply); (c) the provision on special deduction of gains on transfer of high-priced houses (hereinafter referred to as “the instant provision”) on the instant shares, the instant provision separately applies to the land exceeding KRW 155,000,000,00.

On January 4, 2018, the defendant calculated the tax amount of KRW 49,745,35,354 (including additional tax), total of KRW 50,293,950 (including additional tax), and additionally imposed capital gains tax of KRW 45,637,950 after deducting the tax amount paid by the plaintiff from the tax amount of KRW 45,637,950, as the high-priced and the land annexed to the house.

x) The Plaintiff filed the instant lawsuit following the pre-trial procedure by the Tax Tribunal.

[Ground of recognition] Facts without dispute, Gap evidence 1-2, Gap evidence 2-1, 2-2, Eul evidence 1-2, Eul evidence 1-2, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. Key issue

(1) The transfer of the instant housing building constitutes a transfer of one house by one household who is not subject to the restriction on the retention period under Article 1(1)2(a) of the former Enforcement Decree of the Income Tax Act. However, the sum of the actual transaction prices at the time of transfer of the housing and its appurtenant lands is KRW 1,267,50,680 (the value of the instant housing building + KRW 41,480,000 + the value of the instant issues + KRW 317,527,230 + the value of the shares in the instant case + KRW 908,498,450) and exceeds KRW 900,000. Therefore, the transfer margin should be calculated in accordance with the provisions of the instant special case.

See The defendant made the disposition of this case on the premise that the special provisions of this case apply only to the land of the basic area. The plaintiff applied the special provisions of this case to the entire issues of this case, and applied the special provisions of this case to the whole issues of this case, and the disposition of this case is treated as transferring a specific part corresponding to the plaintiff's share among the entire land of this case, which is contrary to the nature of sharing. It is argued to the purport that it

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(1) Determination on the scope of the application of the Special Provision

㈎ 구 소득세법 제89조 제1항 제3호 가목은 1세대가 1주택을 보유하는 경우로서 대통령령으로 정하는 요건을 충족하는 주택(가액이 대통령령으로 정하는 기준을 초과하는 고가주택은 제외한다)과 이에 딸린 토지로서 건물이 정착된 면적에 지역별로 대통령령으로 정하는 배율을 곱하여 산정한 면적 이내의 토지(주택부수토지)의 양도로 발생하는 소득에 대하여는 양도소득세를 과세하지 아니한다고 규정한다.

In addition, the special provisions of this case concerning the method of calculating gains on transfer, and Article 95 (3) of the former Income Tax Act provides that "the amount of gains on transfer and special deduction for long-term holding of assets falling under expensive houses (including land appurtenant thereto) excluded from subject to non-taxation on capital gains pursuant to Article 89 (1) 3 of the former Income Tax Act shall be the amount calculated as prescribed by Presidential Decree, notwithstanding paragraph (1)," and Article 160 (1) of the former Enforcement Decree of the Income Tax Act provides that gains on transfer applicable to assets falling under expensive houses shall be calculated by dividing gains on transfer under Article 95 (1) of the Act by the ratio calculated by subtracting the amount of KRW 90 million from the transfer value by the transfer value under Article 95 (1) of the Act, and it does not explicitly provide for the restriction of the area of land appurtenant to expensive houses within a certain scope.

㈏ 그러나 이 사건 특례 규정은 고가주택 양도의 경우 양도소득세를 부과하는 대신 그 양도차익을 일정 비율로 축소하여 주는 내용으로서 구 소득세법 제89조 제1항 제3호에서 규정하는 주택부수토지에 상응하는 면적을 초과하는 주택부지에 대해서까지 이를 적용하는 경우, 주택 및 주택부수토지에 상응하는 면적의 양도차익이 법 제95조 제1항에 따른 양도차익에서 '양도가액에서 9억 원을 공제한 나머지를 양도가액으로 나눈 비율'만큼 축소될 뿐 아니라 나아가 그 초과 부지의 양도차익도 같은 비율로 축소되는 결과를 낳는다.

This is against the tax equity by making the more favorable result than the transfer value of less than KRW 900 million, which takes the remainder after deducting necessary expenses from the transfer value in accordance with Article 95(1) of the Act, for the land exceeding the land annexed to the house and the land annexed to the house. In the case of transfer of high-priced house, it is judged that the transfer income is subject to taxation, and it is inconsistent with the legislative intent of heavy taxation by deeming the land exceeding the area obtained by multiplying a certain ratio of the area adjacent to the house as the non-business land.

Therefore, it is reasonable to limit the scope of application of the special provisions of this case by interpreting only the land of the area calculated in accordance with Article 89(1)3 of the former Income Tax Act and Article 154(7) of the former Enforcement Decree of Income Tax Act as the land attached to the "high-priced house (including the land attached thereto)" under Article 95(3) of the former Income Tax Act. The plaintiff's assertion on a different premise is rejected.

㈐ 위 기준에 의할 때, 이 사건 주택건물, 기준면적토지의 양도차익은 이 사건 특례 규정에 의하여 계산하고, 기준초과토지의 양도차익은 원칙으로 돌아가 구 소득세법 제95조 제1항에 의하여 계산하여야 할 것인바, 피고는 기준면적토지의 양도차익을 이 사건 쟁점지분에 대하여 이 사건 특례 규정을 적용하여 계산한 양도차익에서 기준초과토지의 양도차익을 공제하는 방식으로 계산하고 있다.

Although the defendant's calculation method is not in conformity with the above criteria, it is more favorable to the plaintiff as the transfer margin of land in the basic area is lower than the time when the transfer margin is based on the above criteria, so the disposition of this case cannot be deemed unlawful.

Judgment on the assertion that she violates the nature of the share sharing

The effect of the Plaintiff’s share on the entire land of this case is natural in view of the nature of sharing, unless the Plaintiff and BB exclusively occupy a specific part of the entire land of this case, but do not have a sectionally owned ownership only in the form of ownership.

However, among the entire land of this case, the area corresponding to the land annexed to a house under Article 89 (1) 3 of the former Income Tax Act is 755 square meters, and the above part is owned by the Plaintiff and BB, so the special provisions of this case should be applied only to the area obtained by multiplying the above area by the Plaintiff’s share. In the process, the Defendant’s conversion of the basic area and the land in excess of the standard to the Plaintiff’s share into the area according to the Plaintiff’s share is merely for convenience in the application process (the same result is derived even if the basic area and the land in excess of the standard amount are determined to be the Plaintiff’s share ratio against the 755 square meters of the entire land of this case and the remaining 982 square meters of the total land of this case) and the transfer of the

Therefore, we cannot accept this part of the plaintiff's assertion.

3. Conclusion

Thus, the plaintiff's claim is dismissed as it is without merit.

1) The grounds for calculating the transfer margin of the instant housing building are as follows.

Transfer margin 31,480,000 】 [The transfer value of the building of this case and the entire land of this case - 90 million won] 】 [The transfer value of 1,267,505,680 won - 1,267,505,680 won] = 31,480,000 】 28.944%

2) The Defendant calculated gains from transfer of land in the form of deducting gains from transfer of 42,447,450 won imposed on land exceeding standard amount of KRW 82,759,232 from gains from transfer of 146,398,783 of the instant shares, which is calculated pursuant to the special provisions of the instant case.