propriety of the assertion that a house cannot be used for a house or residence on the public record

Even if the transfer was made by neglecting for a considerable period at the time of transfer so that it is impossible to reside as it is, in light of its basic structure and function, it is possible to use it as a house if it is repaired at any time in a state suitable for residence.

Article 89 of the Income Tax Act

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The Defendant’s disposition of imposition of capital gains tax of KRW 136,685,620 for the Plaintiff on September 14, 2006 is revoked.

1. Details of the disposition;

A. On September 29, 199, the Plaintiff acquired ○○○-dong 1331, 1331, 199 ○○ apartment (hereinafter “instant apartment”) and owned it for three or more years, and transferred it to Kim○-○ on August 31, 2005.

B. On October 31, 2005, the Plaintiff calculated transfer margin only for the excess of KRW 600 million on the premise that the apartment of this case is a high-priced house for one household household, and reported and paid transfer income tax of KRW 7,458,570.

C. On the other hand, on January 8, 1998, the Plaintiff acquired the 49.5 square meters of a single-story house from ○○○-dong 85-4 ground block structure, ○○-dong, ○○-dong, 85-4, and possessed until the time of transfer of the instant apartment.

D. On September 14, 2006, the Defendant rendered a disposition of this case imposing capital gains tax of KRW 136,685,620 on the ground that the Plaintiff owned the instant apartment separately from the instant apartment and constitutes two houses for one household at the time that the Plaintiff transferred the instant apartment, thereby excluding the application of non-taxation provisions on one house for one household, thereby falling under two houses for one household.

[Ground of recognition] Gap evidence Nos. 1, 2-2, Gap evidence Nos. 3, 4, 5, 6, 7, and 10, each of the statements and arguments Nos. 3, 4, 5, 6, 7, and 10

2. Determination of legality of disposition

A. The plaintiff's assertion

Although the purpose in the public record is a house, the transfer of the apartment of this case is not used for a residential purpose at the time of the transfer of the apartment of this case, and cannot be deemed to be an actual house because it cannot be used for a residential purpose. Therefore, the transfer of the apartment of this case should be exempted from the transfer marginal profit equivalent to 600 million won out of the transfer value of the house for one household, which is a high-priced house. However, on August 2006, around 10 months after the date of the transfer of the apartment of this case, the defendant excluded the application of the non-taxation provisions on the transfer income tax of one house for one household by deeming the house as a house based

(b) Related statutes;

/ Income Tax

Article 89 (Non-Taxable Transfer Income)

(1) No capital gains tax (hereinafter referred to as "capital gains tax") shall be levied on the following incomes:

3. Income accruing from transfer of one house for one household as prescribed by the Presidential Decree (excluding expensive houses whose prices exceed the standard prescribed by the Presidential Decree) and the appurtenant land within the area calculated by multiplying the area of the land on which the building is built by the ratio as determined by the Presidential Decree by area (hereafter in this Article, referred to as the “land annexed to the house”); and

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 as provided in Article 97 from the total gross income amount of transfer income as provided in Article 94 (hereinafter referred to as "transfer value").

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

【Enforcement Decree of the Income Tax

Article 154 (Scope of “One House for One Household”)

(1) The term “one house for one household as prescribed by the Presidential Decree” in Article 89 (1) 3 of the Act means the case where a resident and his spouse together with the family members living together with them at the same address or same place of residence (hereinafter referred to as “one household”) has one house in Korea as of the date of transfer, and where the retaining period of the relevant house is not less than 3 years (in the case of a house located in the area designated and publicly notified as a planned area for housing site development under Article 3 of the Seoul Special Metropolitan City, a Si, and a Si, and a Si, and a Si, and a Do, and a Si, and a Do, which are not less than 3 years in possession period and not less than 2 years in possession period): Provided, That where one household has one house in Korea as of the date of transfer and falls under any of the following subparagraphs, its retaining period and residing period shall not be restricted:

(1) The gains on transfer and the special long-term holding deduction amount of assets falling under the expensive houses under Article 95 (3) of the Act shall be the amount calculated by the formula falling under each of the following subparagraphs. In this case, where the relevant housing or lands appurtenant thereto fall under the unregistered transferred assets, the relevant housing or lands appurtenant thereto shall be calculated by multiplying the ratio of the transfer value of the relevant housing or lands up to 600 million won to the total sum of the transfer value of the relevant housing

1. Transfer margin applicable to the assets falling under expensive houses;

Transfer Value - 60 million won

Transfer marginx-- -- of transfer margin under Article 95 (1) of the Act;

Transfer Value

2. The amount of special long-term holding deduction applicable to the assets falling under expensive houses;

Transfer value - 600 million won

x---- of the special long-term holding deduction amount under Article 95 (2) of the Act x---- of the Act.

Transfer Value

C. Determination

According to Article 95 (1) and (3) of the Income Tax Act and Article 160 (1) of the Enforcement Decree of the same Act, the special long-term holding deduction amount shall be calculated by deducting the necessary expenses from the transfer gains after deducting the transfer income from the necessary expenses. However, in calculating the transfer margin and the special long-term holding deduction amount for one household and one high

The ratio of "(transfer value - 600 million won)/transfer value" is multiplied by the ratio. Therefore, it is a question as to whether the instant apartment house at the time of the transfer is considered as a house under the above Act and subordinate statutes, and whether the Plaintiff constitutes two houses for one household.

In a case where a transferor of a house owns another building, whether the other building constitutes "house" under Article 89 (1) 3 of the Income Tax Act and Article 154 (1) of the Enforcement Decree of the same Act shall be determined by whether the actual purpose of use is a building actually being used for a residence regardless of the classification of use in the injury to the building. Even if the building is temporarily used for other purpose, the structure, function, or facilities are in a state suitable for a residence as the original residential purpose, and the residential function is maintained and managed as they are, and at any time, it shall be deemed a house in the case of a building for which the principal or a third party can use for a house (see, e.g., Supreme Court Decision 2004Du14960, Apr. 28, 2005).

In full view of Gap evidence Nos. 10, 11, 12, Eul evidence No. 13-1, Eul evidence No. 2-1, Eul evidence No. 2-1, each evidence No. 2-1, witness No. 13-1, each testimony by YOO, YOOOO, and this court's results of on-site inspection, the whole purport of the pleadings is as follows: (i) the instant house is registered as a "house" with the use on the building ledger and the copy of the register as "house"; (ii) the instant house was occupied by this ○○ et al. for more than 10 years as a church house; and (iii) was left alone or used as a warehouse, etc. since this ○○ sold it to the plaintiff around early 1998;

③ On May 9, 2003, the Plaintiff leased the instant house to ○○○○, a manager of the ○○ church, including the instant church, and the said church and other affiliated buildings. From around that time to May 2005, the ○○○○ used the instant house for the purpose of a new wall gate room, a self-training room, a sexually competitive room, and a warehouse. At the time, the instant house was installed with a boiler heating system, a stop room, a main room, etc., but there was a significant deterioration. However, the Plaintiff leased the instant house to ○○○ on November 9, 2005. At the time, the instant house was loaded with garbage in the interior of the relationship where the said house was left abandoned for about six months, and the fact that ○○○ destroyed the indoor boiler’s waste abandoned in the interior, and the fact that the instant house, a sewerage system, and a toilet, a new house, a toilet, etc. were recognized.

As above, the public register of the instant apartment is a house, and actually used as a house until 198, and is left alone or used as a warehouse. From May 2003 to May 2003, if the apartment building was used as a church engine room, a sexual light room, etc. for about 2 years. From the end of 2005, if it was used as a restaurant or a house after large repair, it has been left unattended for a considerable period at the time of the transfer of the instant apartment, and it has been deteriorated to the extent that it is impossible to reside as it is. However, it is possible to use it as a house if it is repaired at any time in a state suitable for a residence in terms of its basic structure, function, etc.

Therefore, the prior plaintiff's assertion on a different premise is without merit.

3. Conclusion

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