Where one house is transferred in installments to two or more houses, the imposition of capital gains tax shall be made.

Where one house is transferred by dividing into two or more houses, the house of the first transferred part shall not be deemed one house for the relevant household, so a taxation on the income accruing from such transfer shall be reasonable, and the transfer income tax shall not be levied on the remaining house without complying with the ratio of the size of the house and non-house in the remaining building.

Article 6 (2) of the Enforcement Rule of the Income Tax Act

Plaintiff

Kim head of the tax office

Of the disposition imposing capital gains tax of KRW 3,101,082 from time to time on March 8, 1978, and the defense tax of KRW 310,107, the amount exceeding KRW 2,652,056, and the defense tax of KRW 265,205 shall be revoked.

The plaintiff's remaining claims are dismissed.

The total cost of a lawsuit shall be four minutes, and the remainder of one lawsuit shall be borne by the plaintiff.

The defendant's disposition imposing capital gains tax of KRW 3,101,082, defense tax of KRW 310,107 on the plaintiff on March 8, 1978 shall be revoked.

Litigation costs shall be borne by the defendant.

1. According to the purport of Gap evidence No. 8 (C. 12), Gap evidence No. 14 through 16, Eul evidence No. 1-1, and Eul evidence No. 1-7, the plaintiff purchased 176 square meters around 16, 1964, and purchased 176 square meters around 17, and then purchased 170 square meters around 16, 196 to the above 3rd house No. 15 (3rd house No. 17) and the above 17th house No. 177, 196, and the above 16th house No. 167, 196, and the above 17th house No. 177, 196, and the above 16th house No. 1, 197.

2. First, we examine whether the Plaintiff’s income from the transfer of real estate over two times is subject to taxation of capital gains.

According to the provisions of subparagraph 6 (i) of Article 5 of the Income Tax Act (Act No. 2933, Dec. 22, 1976; hereinafter the same) Article 5 subparagraph 6 (i) of the same Act, one house for one household as prescribed by the Presidential Decree and the appurtenant land of which does not exceed 10 times the area on which the building is built shall not be imposed income tax. According to Article 15 (3) of the Enforcement Decree of the same Act (Act No. 8351, Dec. 31, 1976; hereinafter the same shall apply), where there are other buildings, such as stores, etc., part of the house, or where a building for other purposes is constructed on the same lot number, the whole house shall be regarded as a house: Provided, That in this case, buildings other than the house area are defined as a house area smaller than or equal to the area on which the house is built, and the annual house construction of a building other than a house is clearly defined as the number of houses of 31 p.

Therefore, it is clear that the five buildings of this case belong to the so-called one house for one household under the Income Tax Act as seen above.

However, according to the Enforcement Rule of the Income Tax Act (Ordinance of the Ministry of Finance and Economy No. 1233, Feb. 23, 1977) and the latter part of Article 6 (2), where one house is transferred by dividing it into two or more houses, the first transferred house shall not be deemed as one house for one household. Therefore, in this case, the part that the plaintiff transferred to the non-party Y exclusively cannot be deemed as one house for one household, and therefore, the taxation on the income accrued from the transfer is natural.

However, in case where a house corresponding to the original house for one household is transferred by dividing it, it is reasonable to view that the transfer income cannot be taxed on the transfer income without complying with the ratio of the size of the house and the non-housing in the remaining building.

Therefore, the taxation on the income accrued from the transfer of non-party mine water among the taxation of this case is illegal.

3. The interest rate shall be deemed to be the same.

(a) Tax base;

The plaintiff transferred the above village (number 2 omitted) to the non-party Cho Man-man and 218 Hobbebbebbes (the building of this case below) from the above village (number 2 omitted) to the 118th (the building of this case below) and its ground building, and did not make the final return on the profits accruing from the transfer as prescribed in Article 95 of the Income Tax Act and the final return on the profits accruing from the transfer as prescribed in Article 100 of the Income Tax Act are the plaintiff. The plaintiff is the plaintiff, and there is no evidence to determine the amount of the actual transfer value in the sale between the plaintiff and the non-party, except for the testimony in the first village (number 2 omitted), the evidence No. 7, No. 11-1, and No. 11-4, and the evidence No. 1

In addition, in calculating the transfer income tax, the transfer value and the acquisition value should be based on the current base value, such as whether they were based on the actual transaction value or as different, and there is no evidence to acknowledge the actual acquisition value of the transferred real estate in this case.

Therefore, in this case, the transfer value and acquisition value cannot be calculated on the basis of the current base value at the time of transfer and acquisition. First, according to the health account statement of the transfer value, Eul evidence No. 3 (written copy of land register), and Eul evidence No. 5-2 (written table of land, etc.) with respect to the transfer value, the land class and the current base value at the time of the transfer of the land of this case are as stated in the items of attached Table 1-(1)(b) and (c). The current base value per the ordinary base value of the building of this case for which 11 year has elapsed from the housing of the Eup area with the same structure and roof of the building of this case can be recognized as the same facts as described in the items of (1)(c) of attached Table 2-3. Since it is clear that the building of this case was 11 years since March 30, 197, counting from the construction date of the building of this case, the land of this case and the building of this case are 1, 201-2(38) and 408).

The following acquisition value shall be deemed to be acquisition value:

Article 16 of the Addenda of the Income Tax Act provides that the acquisition value of the land and buildings of this case, among the assets provided for in Articles 16 and 23, acquired before December 31, 1967, shall be deemed to have been acquired on January 1, 1968. Article 9 of the Addenda of the Enforcement Decree of the same Act provides that the acquisition value of the assets acquired before December 31, 1967, shall be the value appraised at the current market price (if the market price is unknown, at the current market price as of January 1, 1968) as of January 1, 1968. Since the plaintiff acquired the land and buildings of this case before January 1, 1968, the acquisition value of the land and buildings of this case shall be calculated on a lower basis, Eul evidence 6-2 (Calculation Guidelines of Standard Amount), Eul evidence 7 (No certified copy of the Land), and the acquisition value of the land and buildings of this case shall be deemed to have been recorded at the level of 20-1, 6-2, 16-2, and 1-4).2).

Therefore, 6,230,400 won for land (7,080,00-849,600) and 1,892,240 won for a building (2,328,240-436,000) and 23 (2) 1 of the Income Tax Act and 2 of Article 23 (2) 1 of the Income Tax Act, and special deduction for capital gains under Article 46 of the Enforcement Decree of the same Act, and basic deduction under Article 63 of the same Act shall be deducted from the amount of capital gains under Article 23 (2) 2 of the Income Tax Act, and the tax base shall be 4,570,093 won for land and 1,23,367 won for a building, as described in attached Table 3.

(b) Tax amount;

Therefore, if the capital gains tax is calculated by multiplying the tax base as above by the respective tax rates stipulated in Article 70 (3) of the same Act, it is clear in calculating that the tax base as above is 2,285,046 won (2,570,093 x 50/100) in case of land and 367,010 won in case of a building (1,223,367 x 30/100) in combined 2,652,056 won (2,285,046 + 367,010) in combined 2,65,205 won (2,652,056 x 10/100 in case of a building) in accordance with Article 4 of the Tax Act.

4. Accordingly, the part of the disposition imposing capital gains tax of KRW 3,101,082 and 310,107 from time to time on March 8, 1978, which exceeds KRW 2,652,056, and the defense tax of KRW 265,205, which is recognized as above, is unlawful, and thus, it shall be revoked. The plaintiff's claim is justified within the scope of the above recognition, and the remaining claims are dismissed as without merit. It is so decided as per Disposition.

[Attachment List]

Judges Lee Jong-soo (Presiding Judge)