National Tax Service Review and Transfer 2011-0161 (Law No. 30, 2011)

It is legitimate to apply the special long-term holding deduction to a person who falls under two houses per household.

In addition to apartment houses owned for not less than 10 years, where a spouse owns a house with less than 300 million won standard market price outside the Seoul Metropolitan area, it does not constitute two houses for one household subject to heavy taxation, but it does not constitute one house for one household subject to the Special Provision on Long-Term Possession, and thus, it cannot be deemed as a violation of the principle of proportionality unless it is legally imposed in accordance

Article 95 of the Income Tax Act

Article 104 of the Income Tax Act

2011Guhap2884 Revocation of Disposition of Imposing capital gains tax

XX

Head of Donggsan Tax Office

April 18, 2012

May 16, 2012

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition imposing capital gains tax of KRW 000 on the Plaintiff on October 19, 201 shall be revoked.

1. Details of the disposition;

A. Before September 1989, the Plaintiff acquired and possessed the instant apartment on the grounds of sale by voluntary auction on September 29, 2009, when he acquired and owned the Songpa-gu Seoul Metropolitan Government 00 apartment (hereinafter “instant apartment”), the Plaintiff filed a final return on the transfer income tax of the instant apartment on May 27, 2010 by calculating the transfer value of the instant apartment as KRW 000,000, and the acquisition value as KRW 000,000, and applying the tax base of special deduction for long-term possession as KRW 00,000, and the basic deduction for the transfer income as KRW 00,000, and the calculated tax amount as “0,” and applying the tax base of KRW 00,000.

B. However, thisA, the spouse of the Plaintiff, who constitutes the same household as the Plaintiff, has acquired on March 18, 2002, U.S.O.O. 00-0 OCO 000,000 (hereinafter “Plaintiff’s spouse housing”) and has been owned until now. The standard market price of the housing is KRW 000 at the time of public notice on April 30, 2009, and KRW 000 at the time of public notice on August 30, 2010.

C. On November 2020, the Defendant excluded the special long-term holding deduction on the ground that the Plaintiff’s spouse’s housing falls under the subject of double house of one household. On the other hand, the Defendant calculated the transfer value of the instant apartment as KRW 000, the acquisition value as KRW 000, and the necessary expenses as KRW 000, and calculated the transfer margin and the transfer income as KRW 000,000 by applying the basic deduction for transfer income, and then determined the tax base as KRW 000,000 (= KRW 000,000, KRW 35%), and accordingly, imposed a total tax amount of KRW 00,000 on the Plaintiff on June 13, 201, the Plaintiff dissatisfied with the request for a review by the Commissioner of the National Tax Service to impose a total tax amount of KRW 00,000,000,000,000,000,000,000,000,00,00.

D. In such a situation, on September 2, 2011, the Commissioner of the National Tax Service revoked the part of the initial imposition disposition on June 13, 2011, and thus, the Plaintiff’s request for review corresponding thereto was dismissed. The remainder of KRW 000 owned the apartment house of this case for at least 10 years. Meanwhile, the Plaintiff’s spouse’s housing is located in Ulsan Metropolitan City outside the Seoul Metropolitan area and its standard market price does not exceed KRW 000,000, and thus does not constitute two houses for one household excluding the special long-term holding deduction. Therefore, in calculating capital gains, the Defendant’s failure to deduct the special long-term holding deduction amount equivalent to 30/100 of capital gains from transfer, and thus, the Defendant’s failure to do so is inappropriate, and thus, the Defendant rendered a decision to the effect that “the tax base and tax amount deducted from the capital gains amount

E. Accordingly, on October 19, 201, the Defendant: (a) was a special long-term holding deduction of KRW 000 equivalent to 30/100 of the transfer margin under the revised disposition of June 13, 201; (b) calculated capital gains by deducting the transfer margin from the special long-term holding deduction of KRW 000,000; and (c) calculated the taxation standard based thereon as KRW 000 (=00 - basic capital gains deduction of KRW 000); and (d) accordingly, imposed the principal tax on the Plaintiff (=00), KRW 00,00, 00, 00, 00, and 00,000, and 00,000,000,00.

[Ground of recognition] Evidence Nos. 1, Nos. 1 to 5 (including paper numbers), and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) According to the provisions of the Constitution, property rights, etc. of the people can be restricted only when they are necessary for national security, maintenance of order, or public welfare, and such restriction shall be limited to the minimum extent, and the essential contents of rights, etc. In addition, in the case of two or more houses of one household, the tax-related provisions imposing capital gains tax or imposing heavy capital gains tax are focusing on real estate speculation and the efficient use of land. However, the legislative intent of the Plaintiff has been to live in the apartment of this case for a long time in Seoul for a long time and reside in the apartment of this case, and the Plaintiff’s disposal of the apartment of this case in Ulsan-gu AAdong AA 00-00-00 officetel of Ulsan-gu is 000 in the name of “MM”, and thus, the Plaintiff’s spouse’s ownership of the apartment of this case should be transferred to the Plaintiff’s spouse by voluntary auction regardless of the Plaintiff’s intention, and if the Plaintiff’s spouse’s ownership of the apartment of this case is 000 or 300-0-0-3 houses, which were transferred.

(b) A between related Acts;

It is as shown in the attached Form.

C. Determination

According to the above, since the Plaintiff acquired and possessed the apartment house of this case before September 1989 and transferred its ownership to a voluntary auction on September 29, 2009, and this Plaintiff’s wife at the time of transfer of ownership did not constitute one house for one household under the proviso of Article 95(2) of the former Income Tax Act (amended by Act No. 9897 of December 31, 2009), the Plaintiff’s spouse’s housing is located in Ulsan Metropolitan City outside the Seoul Metropolitan area and its standard market price does not exceed 00 won, and thus, the Plaintiff’s disposal of the apartment of this case does not violate the principle of proportional taxation of Article 104(1)2-5 of the former Income Tax Act, Article 167-5(1)1 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 21765 of Oct. 1, 2009) and Article 167-5(1)1 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 1000 of the same case’s of this case).

Furthermore, as long as the disposition of this case was legally imposed in accordance with the relevant Acts and subordinate statutes, it cannot be deemed that the disposition of this case violates the principle of proportionality (the principle of proportionality) solely on the ground that the amount of capital gains tax on the disposition of this case is more than three times more than the amount of damages, as alleged by the Plaintiff, and there is no reason to deem otherwise.

Therefore, the plaintiff's above assertion is without merit.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.