early trial 2014west 1293 ( November 12, 2014)

The purpose in the public register is a house, but it is not actually used for a house, so it can not be seen as a house for one household.

The purpose in the public register is a house, but it is not actually used for a house, so it can not be seen as a house for one household.

Article 154(1)1 of the Enforcement Decree of the Income Tax Act

2015Guhap5370 Revocation of Disposition of Imposing capital gains tax

AAA

O Head of tax office

oly 16, 2015

oly 30, 2015

1. The plaintiff's claim is dismissed.

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

The Defendant’s imposition of capital gains tax of KRW 00,000,000 (including additional tax of KRW 00,000,000) against the Plaintiff on December 1, 2013 shall be revoked.

1. Details of the disposition;

A. On March 4, 2013, the Plaintiff transferred 149.1 square meters of an OO-dong 00-A land and 342.43 square meters of the above ground buildings (hereinafter “instant building”) to the KimO-O on March 4, 2013, and 100-B land and 164.93 square meters of the above ground buildings, and reported transfer income tax to the Defendant on May 31 of the same year.

Afterward, capital gains tax of 00,000,000 won was paid.

B. The Defendant conducted an investigation into capital gains tax on the Plaintiff from October 7, 2013 to December 26, 2013, and determined the instant building that the Plaintiff reported as a house as a neighborhood living facility. On December 1, 2013, the Defendant issued a revised and notified the Plaintiff of KRW 00,000,000 (including additional tax 00,000,000) of capital gains tax for the year 2013 by excluding the non-taxation on capital gains and the special long-term holding deduction applicable to one house for one household (hereinafter “instant disposition”).

C. The Plaintiff appealed and filed an appeal with the Tax Tribunal on February 11, 2014, but was dismissed on November 7, 201 of the same year.

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, Eul evidence 1 (including paper numbers; hereinafter the same shall apply), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The issue of whether a building is a house under a non-taxation provision for one household ought to be determined on the basis of the date of liquidation of the purchase price, not on the date of conclusion of a sales contract. Since the Plaintiff received the remainder on March 4, 2013 and changed the use of the instant building to a house at the time of the remainder liquidation, and the Plaintiff transferred the instant building to a residence, the instant building is deemed a house, and thus, the instant disposition is unlawful.

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

1) The details of the Plaintiff’s acquisition and alteration of use of the instant building are as follows.

2) On November 29, 2012, the Plaintiff entered into a sales contract for the instant building with the KimO on November 29, 2012, and the use of the instant building under the sales contract is indicated as the “finite living facilities.”

3) On September 1, 2010, the Plaintiff leased the instant building to the UO (00-00-000). The UO sublet sublet leased the instant building to AAAAA ( underground1 floor), BBB (1 floor), CCC (1 and 2 floor), and DDD (3 floor).

On the other hand, according to the detailed statement of real estate rent and supply price (2013) submitted by the UOO to the Defendant for the report of value-added tax (CCC) on January 31, 2013, CC removed from the first and second floors of the instant building, and DDDD was written out from the third floor of the instant building on February 28, 2013.

4) On December 20, 2010, the Plaintiff moved into Seoul 00-dong 00-dong 000-dong 0000 apartment units (hereinafter “00 apartment units”) and moved into the instant building on February 1, 2013.

On the other hand, on February 21, 2013, GOO, the plaintiff's spouse, sold 00 apartment buildings to AB, the plaintiff's child, and the sales price of KRW 0 billion was determined to be paid as follows.

Article 1 (Sales Price)

(1) A buyer shall pay a purchase-price to a seller at the following intervals:

Sales Amount of KRW 0,000,000,000

00,000,000 won for down payment shall be treated in accordance with the special agreement of Article 5 on the date of the contract.

Any balance of 0,000,000,000 won shall be paid periodically on February 26, 2013, and shall be disposed of in accordance with a special agreement under Article 5.

Article 5 (Special Matters to be Specified)

The payment method of the purchase price of apartment shall be KRW 00,00,000,000, which is the down payment method for the purchase price of apartment shall be the sum of KRW 000,000,000 that the buyer remitted to the seller's deposit account (O bank 000-00-000) on September 25, 2008, and the seller shall substitute the remainder of KRW 000,000,000 which the buyer has not returned from the seller's deposit account (O bank 00-0,000) and the seller shall pay the remainder of the remainder of the outstanding rental deposit with the buyer on February 20, 203 (OOO bank :0,000,000). The seller shall be the buyer shall pay the remainder of the outstanding rental deposit with the remainder of KRW 00,000,000 which is the remainder of the outstanding rental deposit.

[Reasons for Recognition] Class A: Evidence Nos. 3, 4, 6, 12, 13; Evidence Nos. 2 through 5; the purport of the whole pleadings

C. Determination

1) One house for one household which is exempt from capital gains tax, in principle, requires that a household comprised of a resident and his/her spouse together with the family members living together with the same resident at the same address or same place of residence, shall own one house in Korea and reside for not less than three years after the date of acquisition. On the other hand, since no special provision exists otherwise regarding the decision on the date of acquisition, in calculating gains on transfer of assets, Article 98 of the Income Tax Act and Article 162(1) of the Enforcement Decree of the same Act, which provides the time of acquisition and transfer, apply as is (see Supreme Court Decision 95Nu10150, May 16, 1997). Housing under Article 89(1)3 of the Income Tax Act and Article 154(1) of the Enforcement Decree of the same Act refers to a building that is actually used for a residence regardless of the classification of the use of building injury (see Supreme Court Decision 85Nu790, Mar. 25, 1986).

2) According to Article 98 of the Income Tax Act, the transfer time of the instant building shall be, in principle, based on the date of settlement of the price. Since the date the Plaintiff settled the remainder of the instant building on March 4, 2013, it shall be determined whether the provisions of one house per household apply according to the purpose of the instant building as at March 4, 2013. The fact that the use on the 2,3, and 4th floor of the instant building was changed to the house as at the time of March 4, 2013, the above facts are as follows, but the alteration to the 2, 3, and 4th floor of the instant building is difficult to be seen as the sale of the instant building as at the time of the conclusion of the sales contract for the instant building, and the alteration to the 2, 30th floor of the instant building to the 3rd floor of the instant building, which was difficult to be seen as the alteration to the 1,2013rd floor of the instant apartment building as at the time of removal.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so ordered as per Disposition.

shall be ruled.