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(영문) 1세대 1주택의 부수토지로 보아 1세대1주택 장기보유특별공제율(76%)을 적용 할 수 있는지 여부(기각)
조세심판원 조세심판 | 2009-12-23 | 조심2009서0062 | 양도
[Case Number]

early 2009west062 ( December 23, 2009)

[Items]

Transfer

[Types of Decision]

Dismissal

[Summary of Decision]

The land has been managed and disposed of as a commercial building at the time of approval for the management and disposal, and it is difficult to regard the transfer of housing at the time of transfer after the date of approval for the management and disposal, so the special deduction rate for long-term possession of one house per household

[Related Acts]

Article 95 of the Income Tax Act / [Special Deduction for Long-Term Holding] Article 159-2 of the Enforcement Decree of the Income Tax Act / [Calculation of Gains from Transfer, etc.]

【Disposition】

The appeal is dismissed.

【Reasoning】

1. Summary of disposition;

A. On August 24, 1989, the claimant acquired OOOOOOO 1 from OOO on 195 site, 5.43 square meters, 195-1 site, 249.17 square meters, and 91.64 square meters of buildings on the above ground from OO, but the claimant transferred 29.12 square meters of the above 195-1 site to OO, 220.05 square meters of the remaining 195-1 site ( July 14, 1992) and the above 195 site, 225.48 square meters of the site, and 91.64 square meters of the above building on the above ground (hereinafter referred to as “store building”) and transferred 2000 square meters of real estate to OO-208 square meters of real estate (hereinafter referred to as “real estate on the above site”) and transferred it to O-2008 square meters of real property on the above ground (hereinafter referred to “2008;”).

After that, at the time of acquiring the key real estate, the claimant removed the key building at Oconstruction Co., Ltd. (hereinafter “O Construction”) on January 5, 191, 191, which was after the authorization to implement the urban redevelopment project was granted, but the construction was suspended due to the failure to implement the project and transferred the key land after the authorization to implement the project was changed. In this case, since the key land is the land of one house for one household, it is the land of one house for one household, applying the special deduction rate for long-term possession under Article 159-2 of the Enforcement Decree of the Income Tax Act (hereinafter “special deduction rate for long-term possession of one house for one household”) to the disposition office on October 15, 2008, deeming that it is reasonable to apply the special deduction rate for long-term possession of one house for the key land under Article

B. On June 27, 1989, the disposition authority denied the claim for correction of the claimant on November 20, 2008, considering that the main purpose of the real estate was from the time of authorization to implement the urban redevelopment project on December 5, 2006, and that the purpose of the land was at the time of public announcement of the approval to implement the management and disposal plan on October 19, 2007, the transfer of the land at issue was a business facility and a neighborhood living facility.

C. The claimant appealed and filed an appeal on December 17, 2008.

2. Opinions of the claimant and disposition agency;

A. The claimant's assertion

(1) On January 15, 1991, the claimant participated as a partner of the redevelopment project and removed the building at issue under the urban redevelopment project. October 2, 2008, there was no other house at the time of the transfer of the land at issue.

Even if the pertinent real estate was acquired after the approval of the implementation of the urban redevelopment project, there is no ground provision that it is not a house, so the transfer of the pertinent land is the transfer of one house for one household and its appurtenant land, so the special long-term holding deduction rate for one house per household (76%) should be applied to the pertinent land

(2) Even if the pertinent land is considered as “right to acquire real estate”, it is reasonable to calculate gains on transfer by deeming gains on transfer as real estate before and after the public notice of the approval for the management and disposal plan as “right to acquire real estate” under Article 166 of the Enforcement Decree of the Income Tax Act. As such, the key land is subject to the special deduction for long-term possession of

(b) Opinions of disposition agencies;

The key real estate was acquired after the authorization of the project implementation on June 27, 1989, and was the site condition after the removal of the building on January 15, 1991, and the use of the building was the business facility from the authorization date of the project implementation to the authorization date of the management disposition on October 19, 207.

On November 30, 2006, an applicant filed an application for parcelling-out to a commercial building on September 24, 2008, but withdrawn the parcelling-out to a commercial building on September 24, 2008. Since the use of a building approved on October 10, 2008 is a business facility, it is difficult to see that the applicant acquired and owned the house and transferred it, and therefore, the applicant is justified in the initial disposition rejecting the application for rectification by excluding the application of

In addition, the calculation of gains on transfer under the provisions of Article 166 of the Enforcement Decree of the Income Tax Act applies to the right to move in acquired and owned a house, and the key land converted into the right to move in is not subject to the special long-term holding deduction for one house for one household.

3. Hearing and determination

A. Key issue

(1) Whether the special long-term holding deduction rate of one house per household (76%) can be applied to the controversial land by deeming the controversial land as the land owned by one household as the land owned by one household

(2) Even if the right to acquire the key land is the right to acquire the real estate, whether the special deduction rate for long-term possession of one house per household (76%) can be applied by deeming it as real estate before the public notice of the management and disposal plan was given pursuant to Article 166 of the Enforcement Decree

(b) Related statutes;

(1) Income Tax Act (amended by Act No. 8911 of March 21, 2008)

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

(2) "Amount of special long-term holding deduction" in paragraph (1) means the amount calculated by multiplying gains from the transfer of relevant assets by the deduction rate by holding period prescribed in attached Table 1, in cases of assets under Article 94 (1) 1 (excluding assets to which tax rates under Article 104 (1) 2-3 through 2-8 and 3 apply), the holding period of which is at least three years: Provided, That in cases of assets falling under one house for one household (including land annexed thereto), as prescribed by Presidential Decree, it means the amount calculated by multiplying the gains from the transfer of relevant assets by the deduction rate by holding period prescribed in attached Table 2:

Table 1

Deduction Rate

From 3 years to 4 years, less than 10/100;

From four years to five years, less than 12/100;

From five years to six years, less than 15/100;

From six years to seven years, less than 18/100;

Not less than seven years and less than eight years and less than 21/100

From 8 to 9 years to 24/100;

From 9 years to 10 years, less than 27/100;

From 10 years to 30/100;

Table 2

Deduction Rate

From three years to four years, less than 12/100;

From four years to five years, less than 16/100;

From five years to six years, less than 20/100;

From six years to seven years, less than 24/100;

From 7 years to less than 8 years, less than 28/100;

From 8 to 9 years to 32/100;

From 9 years to 10 years, less than 36/100;

From 10 to 11 years, less than 40/100;

11 to 12 years, but less than 44/100;

48/100 to 13 years of age;

13 to 14 years, but less than 52/100;

14 to 15 years, but less than 56/100;

From 15 to 16 years, less than 60/100;

16 to 17 years, but less than 64/100

From 17 years to 18 years, less than 68/100;

72/100 to 19 years of age;

76/100 to 20 years of age;

From 20 years to 80/100

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

(4) The holding period of assets under paragraph (2) shall be the date of acquisition of the relevant assets and the date of transfer: Provided, That in cases falling under Article 97 (4), the date the donated spouse acquires the relevant assets shall

(5) Matters necessary for the calculation of capital gains shall be prescribed by Presidential Decree.

(2) Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 20618, Feb. 22, 2008)

"One house for one household prescribed by Presidential Decree" in the proviso to Article 95 (2) of the Act other than the table of Article 159-2 of the Act means a house (including a house deemed one house for one household under Articles 155, 155-2, 156-2 and other provisions) in cases where one household owns one house in the Republic of Korea as of the date of transfer.

Article 166 (Calculation, etc. of Gains on Transfer) (1) In calculating gains on transfer under Article 100 of the Act, where a member of a partnership association implementing a housing redevelopment project or a housing reconstruction project transfers the status of being selected as an occupant after providing the existing building and its appurtenant land to the relevant partnership (including a case of providing only buildings or land) and transferring the status of being acquired, the gains on transfer of

1. When the settlement balance is paid:

[Transfer value £­ (The appraised value of the existing building and its appurtenant land + the liquidation money paid + the appraised value of the existing building and its appurtenant land) - Necessary expenses under Article 97 (1) 2 and 4 of the Act] (hereafter referred to as "transfer marginal profit after authorization of a management and disposition plan" in this Article) / [The appraised value of the existing building and its appurtenant land - the acquisition value of the existing building and its appurtenant land - Necessary expenses under Article 97 (1) 2 and 4 of the Act or Article 163 (6) of the Act] (hereafter referred to as "transfer marginal profit

2. When the settlement balance is received:

[The necessary expenses under Article 97 (1) 2 and 4 of the Act] Value of transfer - (The appraised value of the existing building and its appurtenant land - the value of the existing building and its appurtenant land - the acquisition value of the existing building and its appurtenant land - the value of the existing building and its appurtenant land - the necessary expenses under Article 97 (1) 2 and 4 or 163 (6) of the Act) 】 Value of the existing building and its appurtenant land - the appraised value of the existing building and its appurtenant land - the liquidation

C. Facts and determination

(1) The facts related to the pertinent real estate are as follows.

○ Designation of Urban Redevelopment Project Zones (OOOOOOOOOO) on September 30, 1983

○ Decision on the Project Plan (OOOOOOOOOOOO)

○ project implementation authorization (OOOOOOOOOOOO) in O construction on June 27, 1989

○ On August 24, 1989, the claimant acquired real estate at issue (Consent to redevelopment project)

○ For the modification of the project implementation(OOOOO) on December 14, 1990

○ Removal of a building at issue in O Construction on January 15, 1991

○ Suspension of construction due to failure to perform O Construction on August 1991

○ Acquisition of the claimant’s OO apartment on 1995

○ On April 19, 2005, OO-style house acquired the right to execute the project.

○ Approval for Project Implementation (OOOOOOOO, OOOOO,OOOOO,OOOOOOOO, OOOOOOO.)

○ On June 15, 2006, Zone Three Urban Environment Improvement Zones (OOOOOOOOO, OOOOOOOOOOOOOOOOOOOOOOO

○ 2006.13. Amendment to project implementation authorization (OOOOOOO)

on December 5, 2006, the commencement of construction works and the application for parcelling-out in the OO-style houses

○ Notice for Authorization of Management and Disposal Plans (OOOOOOO, OOOOOO, OOOOOOOOOOO)

○ The General Assembly for the Establishment of Management and Disposal Plans on July 18, 2008

○ Transfer of the claimant’s OOO apartment on September 24, 2008

○ Public Notice on October 2, 2008 on the amendment of the management and disposal plan for urban environment rearrangement projects (OOOOOO)

○ On October 2, 2008, the transfer of the claimant’s key land

○ Reporting on October 7, 2008 of the issue land transfer income tax

○ Receipt of an application for rectification for the issue of land transfer on October 15, 2008

(2) The details of reports on, and requests for rectification of, transfer income tax on the transfer of the land at issue are as follows.

OOOOOOOOOOOOOOOOOOOOOOOOO

(O) OOO

(3) The grounds for taxation of the agency are as follows:

(A) The key land sales contract provides that the claimant and the OO-style shall pay 10.5 billion won for the purchase price of the key land on September 3, 2008, and the remainder shall be paid 500 million won on October 1, 2008, and the sales contract was concluded. The remainder of 500 million won was deposited in the court and the ownership transfer registration was completed on October 2, 2008.

(B) On August 24, 1989, the key real estate is the fact that the appellant acquired from the SongO on August 24, 2008, and transferred to the OO-style house on October 2, 2008, the key building is the business use from the time of acquisition, and it is confirmed that the building was destroyed on January 15, 191, but the fact that the claimant has resided in the key real estate is not confirmed.

(C) The construction facilities of the urban environment rearrangement project in district No. 3 of Zone 2, Zone 3 are included in business facilities and neighborhood living facilities, as publicly notified by the head of the OOOO on October 19, 2007 by the head of the OOOOO's notification No. 2007-50.

(D) On December 5, 2006, the applicant filed an application for parcelling-out with an urban redevelopment project developer for parcelling-out of the controversial real estate as the details of the right, but the applicant's written opinion states that "The contents of the application for parcelling-out of the unit of the unit of the unit of the unit of the unit of the unit of the unit of the unit of the unit of the unit of the unit of the unit of the unit of the unit of the unit of the unit of the unit of the unit of the unit of the unit of the unit of the unit of the unit of the unit of the unit of the unit of the unit of the unit of the unit of the unit of the unit of the unit of the unit of the unit of the unit of the unit of the unit of the unit of the unit of the unit of the unit of the unit of the unit of the unit of the

(4) Evidence presented by the claimant is as follows:

(A) The key building is the confirmation letter by the representative director of the OO, the former owner of the pertinent real estate, the neighboring resident OO, or the representative director of the OO-development corporation, the project implementer, stating that the building was used for residential purposes at the time of removal as a brush of the shape of “c”.

(B) The applicant filed an application for parcelling-out with a signature signed on September 24, 2008 with the purport that the applicant reserved an objection on November 30, 2006 and applied for parcelling-out with the purport that he wishes to purchase 1,031 square meters of underground neighborhood living facilities. On October 18, 2007, an OO-style house prepared a management and disposition plan with the purport that the applicant sells 723.27 square meters of the first floor neighborhood living facilities in lots. The applicant withdraws the application for parcelling-out with the previous pursuant to Article 47 subparagraph 2 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, and therefore the applicant wishes to be liquidated in cash under the same subparagraph.

(C) In the letter of waiver of the right to sell lots signed on September 25, 2008, the claimant indicates that the claimant wishes to sell the land in question owned by him/her to the urban environment rearrangement project executor in Zone II and Zone III of OO, and accordingly, to waive the status of being selected as the occupant of the first floor underground under Article 47 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents and to be liquidated in cash.

(5) We examine the issues (1) under the above facts.

The claimant asserts that the transfer of the issue land is subject to the special long-term holding deduction rate of one house per household (76%) because the claimant transfers one house for one household and its appurtenant land;

The key real estate was authorized as a business purpose when the urban redevelopment project is approved, the claimant acquired the key real estate after the approval of the urban redevelopment project, and the claimant did not have resided in the key real estate, so it is difficult to view that the claimant acquired the key real estate for the purpose of residence

In addition, it is difficult for the claimant to apply the special long-term holding deduction rate of one house per household (76%) to the land at issue because it is difficult to view that the land at issue is transferred at the time of transfer after the date of approval of management and disposal.

Therefore, the initial disposition that the disposition agency rejected the claim for correction, etc. of the claimant by excluding the application of the special long-term holding deduction rate of one house per household for the transfer of the key land is judged to be different.

(6) We examine the issues (2).

According to Article 166 of the Enforcement Decree of the Income Tax Act, the claimant asserts that even if the disputed land is "right to acquire real estate (right to use)", the transfer margin should be calculated by considering the real estate before the notice of the approval of the management and disposal plan as the right to use after the notice.

The calculation of gains on transfer under Article 166 of the Enforcement Decree of the Income Tax Act applies to cases where a member of a rearrangement project association who implements a housing redevelopment project or a housing reconstruction project provides the association with the existing building and its appurtenant land and transfers the status of being selected as an occupant that has been acquired. As to the transfer of the status of being selected as an occupant through an urban redevelopment project, such as this case, it is difficult to accept the claim for transfer gains under Article 166 of the Enforcement Decree of the Income Tax Act.

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 a trial has no merit as a result of the review.

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