[Case Number] High Court Decision 2015Do1159 (No. 20, 2015)

[C] Assignment [Type of Decision] Dispact

[결정요지] 「소득세법 시행령」 제155조 제1항은 1주택자가 대체주택을 취득하는 경우 즉, 일시적 1세대 2주택자인 경우에 적용되는 것인 점, 쟁점주택 양도일 현재 청구인이 쟁점주택을 포함하여 ??? 아파트 및 ＊＊＊ 아파트 등 3주택을 보유한 사실이 확인되는 점 등에 비추어 처분청이 쟁점주택의 양도에 대하여 1세대 1주택 비과세 규정의 적용을 배제하고 청구인을 1세대 3주택자로 보아 양도소득세를 과세한 처분은 잘못이 없음

[Related Acts and subordinate statutes] Article 89 of the Income Tax Act / Article 95 of the Income Tax Act / Article 154 of the Enforcement Decree of the Income Tax Act / Article 155 of the Enforcement Decree of the Income Tax Act /

The appeal is dismissed.

1. Summary of disposition;

A. On November 12, 1986, an applicant acquired a OO (1m2, 88.1m2, building 159.08m2, hereinafter referred to as “OO-house”) and transferred the transfer value on May 30, 2014 to the O-house as one house for one household exempt from capital gains tax, and reported and paid capital gains tax on June 13, 2014 by deeming that the transfer value as one house for one household exempt from capital gains tax.

B. On January 14, 2015, the disposition agency, as the claimant, deemed that the claimant is not eligible for exemption from capital gains tax for one household, as a third house holder at the time of transferring the key house, and subsequently corrected and notified the OO of capital gains tax for the year 2014.

C. The claimant appealed and filed an appeal on February 13, 2015.

2. Opinions of the claimant and disposition agency;

A. The claimant's assertion

(1) Until October 31, 2013, the claimant worked as an OO technology adviser, and worked as a research assistant for industry-academic cooperation in 2014 at the OOOA. However, the wage was insufficient to pay for living expenses, and thus, the housing was inevitably transferred. During this process, the applicant resided in the housing at issue in the period exceeding three months from the contract date ( February 20, 2014) to the settlement date ( May 30, 2014). The reason was that the buyer acquired the housing at issue in consideration of the real estate economic stability and paid the balance to the applicant with the funds. In fact, on May 30, 2014, the buyer set the lease on May 30, 2014.

(2) After the key housing contract, an OO apartment (hereinafter “OO apartment”) was purchased, and the OO apartment (hereinafter “OO apartment”) was purchased in order for the claimant to reside. In light of the flow of the sales fund and the circumstances at the time of the sale, etc., it is not for the purpose of purchasing OO apartment and OO apartment with the purchase price of the OO apartment and OO apartment with the purchase price of the OO apartment, but with the purchase price of the OO apartment.

(3) The disposition agency should impose capital gains tax on the sole basis of the fact that the situation, etc. at the time of transfer is three houses on the surface without examining and reflecting the situation, etc. at the time of transfer in the disposition agency violates the principle of tax equality, which is the basic ideology of the tax law, and Article 14(2) of the Framework Act on National Taxes provides that “The provisions on the calculation of tax base in the tax-related Acts shall be applied according to the substance of the transaction, etc. notwithstanding the name or form of income, profit, property, act or transaction.

(b) Opinions of disposition agencies;

Where one household which owns one house in Korea transfers the previous house as a temporary 2 house for the substitute acquisition of another house within three years from the date of acquisition of the previous house, capital gains tax shall be exempted pursuant to Article 155 (1) of the Enforcement Decree of the Income Tax Act. However, in the case of three houses for one household, no special exception to capital gains tax exemption is provided, in order to exclude the number of houses owned by one household from the number of houses owned by one household, when determining the non-taxation of one house, a resident who has registered as a rental house under Article 168 of the Income Tax Act and a business operator under Article 6 of the Rental Housing Act is registered as a rental house, but the applicant is not registered as a business operator, and the date of acquisition and transfer of real estate is registered as the date of receipt of registration, and if the transfer is registered before the payment is settled.

3. Hearing and determination

(a) Points in dispute;

Claimant’s disposition imposing capital gains tax by deeming that he/she had three houses and transferred the house at issue;

(b) Related statutes;

(1) Income Tax Act;

Article 89 (Non-Taxable Capital Gains) (1) No income tax on capital gains (hereinafter referred to as "capital gains tax") shall be levied on the following income:

3. Income generated from transfer of any of the following houses (excluding expensive houses the value of which exceeds the standard prescribed by Presidential Decree) and land appurtenant thereto, the area of which is within the area calculated by multiplying the area of which a building is built by the multiple rates prescribed by Presidential Decree for each area (hereafter referred to as "land annexed to a house" in this Article):

(a) One house for one household prescribed by Presidential Decree;

(b) A house prescribed by Presidential Decree, where one household acquires another house by substitute prior to transferring one house, or owns two or more houses due to inheritance, living together support, marriage, etc.;

Article 95 (Transfer Income Amount) (1) The amount of capital gains shall be the amount calculated by deducting the special deduction for long-term holding from the amount (hereinafter referred to as "transfer marginal profits") obtained by deducting necessary expenses pursuant to Article 97 from the total amount of capital gains pursuant to Article 94 (hereinafter referred to as "transfer value").

(3) Notwithstanding paragraph (1), gains on transfer and the amount of special deduction for long-term holding of assets falling under a expensive house (including land appurtenant thereto) excluded from the object of non-taxation on capital gains pursuant to Article 89 (1) 3 shall be the amount calculated as prescribed by Presidential Decree.

(2) Enforcement Decree of the Income Tax Act

Article 154 (Scope of One House for One Household) (1) "One house for one household prescribed by Presidential Decree" in Article 89 (1) 3 (a) of the Act means that where one household comprised of a resident and his/her spouse together with the family members who make a joint living at the same address or same place of residence (hereinafter referred to as "one household") has one house in the Republic of Korea as of the date of transfer and the holding period of the relevant house is two years (three years in cases of the resident who falls under subparagraph 2 of paragraph (8)): Provided, That where one household has one house in the Republic of Korea as of the date of transfer and falls under any of the following subparagraphs, it shall not be subject to restrictions on the holding period:

1. Where a constructed rental house under the Rental Housing Act is acquired and transferred, and the period from the date of lease of the relevant constructed rental house to the date of transfer of the relevant constructed rental house is at least five years, during which all members of the household reside (including where a part of members of the household can not reside due to school attendance, circumstances in work, medical treatment of diseases, and other inevitable reasons prescribed by Ordinance of the Ministry

3. Where a house which has resided for not less than one year is transferred due to entering school, circumstances of service, medical treatment of a disease, or other inevitable reasons prescribed by Ordinance of the Ministry of Strategy

(5) The period of possession under paragraph (1) shall be calculated pursuant to Article 95 (4) of the Act, and the period of residence under the same paragraph shall be from the date of transfer on the resident registration card to the date of transfer.

(10) Where one house for one household under paragraph (1) meets all of the following requirements, paragraph (1) shall apply only to the period after the date of transfer of the immediately preceding house under the latter part of Article 155 (19) with the exception of its subparagraphs, deeming that the house has one house in Korea:

1. That he/she has been registered as a rental house under Article 6 of the Rental Housing Act;

2. The person has had a house immediately preceding the residence under the latter part of Article 155 (19) during the retention period of the relevant house;

Article 155 (Special Cases concerning One House for One Household) (1) Where one household which owns one house in Korea comes to temporarily possess two houses by acquiring another house (including cases where the former house is acquired by constructing by itself) before transferring the relevant house (hereafter referred to as "previous house" in this paragraph), if it acquires another house after the lapse of at least one year from the date of acquiring the previous house and transfers the previous house within three years from the date of acquiring the other house (including cases where the transfer is impossible within three years, and which fall under the reasons prescribed by Ordinance of the Ministry of Strategy and Finance), it shall be deemed to be one house for one household and Article 154 (1) shall be applicable. In such cases, where any of subparagraphs 1 and 2 (a) and 3 of Article 154 (1) falls under any of the previous house and appurtenant land, the requirements for acquiring another house after the lapse of one year from the date of acquiring the previous house and appurtenant land shall not apply, and if part of the previous house and appurtenant land are purchased by consultation or expropriated pursuant to Article 154 (1) 2 (a).

Article 162 (Time of Transfer or Acquisition) (1) Cases prescribed by Presidential Decree, such as where the date on which the price has been paid is unclear in the forepart of Article 98 of the Act means any of the following cases:

1. The date of registration, receipt of registration, or transfer of a holder of a transfer, where the date of settlement of price is unclear:

2. Date of receipt of the registration entered in the register, register, list, etc. where the transfer of ownership (including the registration and the opening of names) has been made before the price is settled;

C. Facts and determination

(1) On June 13, 2014, the claimant’s content of the transfer income tax reported the key housing as one house for one household (high-priced house), and reported the transfer value as OO, O, O, 000 won (Conversion value), O, O, O, O,000 won of special deduction for long-term holding, O, O,000 won of capital gains tax, and O,000 won of tax amount to be paid. Accordingly, the disposition authority deemed that the key housing does not correspond to one house for one household subject to non-taxation of capital gains tax, and thus, deemed that the pertinent housing does not correspond to one house for one household subject to non-taxation of capital gains tax, and accordingly, it corrected and notified the transfer income tax for 2014 by O,000 won, O,0000 won of special deduction amount, and O,000 won of tax amount of

(2) The status of the applicant's possession and lease of a house is as follows:

(3) In light of the contents submitted by the claimant as the key housing purchase price user, the down payment O,000 won (OO,000 won as down payment for OO apartment, OO apartment down payment for OO apartment, OO apartment down payment, OO,000 won in balance, the intermediate payment OO, OO00,000 won in part payments for OO apartment, OO00 won in part payments for OO apartment, OO00,000 won in balance, and the remainder is OO0,000 won in remainder. In addition, OO apartment purchase price for OO apartment was paid as the key housing purchase price, and OO0,000 won in the purchase price for O apartment was paid as OO,000 won in the purchase price for the key housing and O0,000 won in the deposit.

(4) Comprehensively taking account of the above facts and relevant statutes, the interpretation of tax laws and regulations is prohibited, barring any special circumstance, by blocking the requirements for taxation, non-taxation, and reduction or exemption under the principle of no taxation without the law. It is not allowed to expand or analogical interpretation without reasonable grounds. In particular, the strict interpretation of the provisions that clearly consider preferential provisions among the requirements for reduction or exemption is consistent with the principle of fair taxation (see, e.g., Supreme Court Decision 2002Du9537, Jan. 24, 2003). Article 155(1) of the Enforcement Decree of the Income Tax Act applies to cases where a single house owner acquires a substitute house, i.e., in cases of a second house of one household temporarily, it is applicable to cases of a second house of one household, i.e., the transfer of a house with an OO apartment or OO apartment, so long as it is confirmed that the appellant possessed three houses together with the transfer of the house, it shall not be subject to tax exemption under Article 89(1)3(b) of the Income Tax Act.

Therefore, it is judged that the disposition authority did not err in the disposal of this case, which was taxed by excluding non-taxation of capital gains tax on the transfer of housing at issue.

4. Conclusion

This case shall be decided as ordered in accordance with Articles 81 and 65 (1) 2 of the Framework Act on National Taxes because the petition for adjudication has no merit as a result of the review.