Cho Jae-2016-west-2382 (Law No. 19, 2016)

It is confirmed that an officetel held at the time of transfer was used for residence, and it cannot be deemed that it constitutes one house for one household.

It is difficult to view that the Plaintiff’s officetel possessed at the time of the transfer of the instant apartment constitutes one house for one household as it is confirmed that it was used for residential purposes.

Article 89 of the Income Tax Act

2016Gudan29470 Revocation of Disposition of Imposing capital gains tax

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○ Head of tax office

May 24, 2017

June 14, 2017

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 000 (including additional tax) against the Plaintiff on O.O. 2015 is revoked.

1. Details of the disposition;

A. The Plaintiff acquired O.O. 1, 198 square meters of 4.35 square meters (hereinafter referred to as “the apartment of this case”) from O.O. 1, Gangnam-gu Seoul Metropolitan Government O2O apartment O. O. O. O. 201.

B. The Plaintiff reported and paid the transfer income tax on the portion exceeding KRW 900 million among the transfer margin on the premise that the instant apartment constitutes “one house for one household” under Article 89(1)3 of the former Income Tax Act (amended by Act No. 11845, May 28, 2013; hereinafter the same shall apply) and Article 154(1) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 24640, Jun. 28, 2013; hereinafter the same shall apply).

C. However, the Defendant conducted an investigation of capital gains tax on the Plaintiff from October 12, 2015 to October 31, 2015, on the ground that the Plaintiff confirmed that the OO-dong O-dong O-dong O-dong O-O (hereinafter “O-dong O-dong O-O-dong O-O-dong O-dong (hereinafter “the instant officetel”) among seven bonds officetels owned other than the instant apartment were used for residential purposes, and on the premise that the instant apartment does not constitute “one house for one household”, on December 10, 2015, on the premise that the instant apartment does not constitute “one house for one household”, the Defendant corrected and notified the Plaintiff on December 10, 2015 (including additional tax) of the capital gains tax for the year 2013.

D. On June 17, 2016, the Plaintiff appealed to the Tax Tribunal for the instant disposition, but the Tax Tribunal rendered a decision to dismiss the Plaintiff’s request on August 19, 2016.

[Reasons for Recognition] No. 18, No. 18, No. 1 and No. 2, and the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

For the following reasons, the instant disposition is unlawful.

1) On October 2013, the Plaintiff confirmed that the apartment of this case constitutes one house for one household under Article 99-2(1) of the former Restriction of Special Taxation Act (amended by Act No. 11845, May 28, 2013; hereinafter the same shall apply) and Article 99-2(3) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 24638, Jun. 28, 2013; hereinafter the same shall apply) and interpreted the same purport as the property tax system of the Ministry of Strategy and Finance. The Plaintiff interpreted that the apartment of this case should ensure predictability for the Plaintiff’s tax payment, and that the Ordinance on the Restriction of Special Taxation should be applied first as a special law under the Act on the Restriction of Special Taxation, the apartment of this case constitutes one house exempt from capital gains tax.

2) Meanwhile, the purpose in the public register of the instant officetel is not only specified for business purposes, but also the Plaintiff reports and pays the value-added tax for each period after the instant officetel was sold in lots. Moreover, any person does not have completed a move-in report in the instant officetel, and the lessee leases the instant officetel on the premise that the instant officetel should be used only for business purposes by explicitly stipulating that the instant officetel is “non-residential building” in the instant officetel lease contract. In addition, if the Plaintiff appears to have paid the property tax on the premise that the instant officetel was not a house, it shall not be deemed that the instant officetel was a house.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Article 99-2 of the former Restriction of Special Taxation Act and Article 99-2 of the Enforcement Decree of the same Act provide that the transfer income tax of a person who acquired a house of one household shall be reduced or exempted for a limited period under the title of "special taxation for transfer income tax on the acquisitors of new houses, etc." under the title of "special taxation for transfer income tax on

However, Article 99-2(3)1 of the former Enforcement Decree of the Restriction of Special Taxation Act provides that "one household shall be determined on the basis of resident registration under the Resident Registration Act as of April 1, 2013, and "housing" is defined as "housing under the Housing Act, i.e., all or part of a building with a structure in which members of a household can carry on an independent residential life for a long time, and land annexed thereto." On the other hand, Article 154(1) of the former Enforcement Decree of the Income Tax Act provides that "one household shall be determined on the basis of whether they share livelihood at the same address or residence as of the date of transfer, and the former Enforcement Decree of the Income Tax Act does not separately provide for the concept of "housing" or method of determination, but on the basis of interpretation, it is determined whether a building constitutes "housing" as defined in Article 99-2(3)1 of the former Enforcement Decree of the Income Tax Act regardless of the use classification of the building injury (see, e.g., Supreme Court Decision 2013Du2788.

The concept of "one house for one household" and "one house for one household" under Article 89 (1) of the former Income Tax Act and Article 154 (1) of the Enforcement Decree of the same Act are completely different. This is because the purpose of Article 99-2 of the Restriction of Special Taxation Act and Article 99-2 of the Enforcement Decree of the same Act is to promote housing transactions through the increase of housing demand, so it is necessary to further recognize the reduction and exemption of capital gains tax of a purchaser of a house more easily and extensively. However, the purport of the Income Tax Act that does not impose capital gains tax on the income accruing from the transfer of one house for one household becomes the basis of a citizen's life. Thus, since the transfer of one house owned by one household in Korea is deemed to be not a transfer of one house temporarily residing or owned for the purpose of acquiring capital gains tax or speculation, it is intended to guarantee the stability of a citizen's residential life and the freedom of residence transfer by failing to impose income tax on such transfer income tax (see Supreme Court Decision 200Du10465, Sept. 28, 20001).

Ultimately, since Article 99-2 of the former Restriction of Special Taxation Act, Article 99-2 of the Enforcement Decree of the same Act, and Article 99-2 of the same Enforcement Decree of the same Act and the Income Tax Act are different in the legislative intent, the concept of "one house for each household" is entirely different. Moreover, the former Restriction of Special Taxation Act only determines the transfer income tax reduction or exemption for the transferor of the house, and there is no provision regarding the transfer income tax reduction or exemption for the transferor of the house. Furthermore, even in cases where a temporary reduction or exemption of the transfer income tax is made for the purpose of facilitating the housing transaction by increasing demand for house, it seems to be necessary to prevent the purchaser of the house from acquiring the house solely for the purpose of acquiring the transfer income or speculation, even if the house of the transferor of the house is confirmed as one house for one household

In accordance with the income tax law, it is necessary to determine whether a house transfer by a house transferor is a house of one household in accordance with the income tax law.

Furthermore, since Article 99-2 of the former Restriction of Special Taxation Act and Article 99-2 of the Enforcement Decree of the same Act do not regulate the transfer income tax of a house transferor from the beginning of the beginning, there is no room to undermine predictability of tax payment by a house transferor, and furthermore, since the subject of the former Restriction of Special Taxation Act and the Income Tax Act are different, they are not in a special law and a general law relationship.

2) As seen earlier, in a case where the transferor of a house owns another building, whether the other building constitutes “house” as prescribed by Article 89(1)3 of the former Income Tax Act and Article 154(1) of the Enforcement Decree of the same Act ought to be determined by whether the actual purpose of use is a building actually offered for residence regardless of the usage classification of the official injury in the building. Meanwhile, barring any special circumstance, a taxpayer bears the burden of proof as to the fact that the transfer of a house for one household is a non-taxation object of capital gains tax (see, e.g., Supreme Court Decision 2005Du8443, Dec. 23, 2005).

However, in full view of the statements and the purport of evidence Nos. 5 and 6 of this case’s officetels, although the purpose of this case’s officetels is business facilities, it appears that the purpose of this case’s officetels is merely business facilities, and convenience facilities, such as toilets, dykes, clothes, etc., are installed in the basic form of association, and thus independent dwelling is possible. OOO, the lessee of this case’s officetel, prepared and issued a confirmation that the instant officetels are used for residential purpose. In fact, OOO completed the move-in report of this case’s officetels on July 29, 2008, and had resident registration at the time of the transfer of this case’s apartment, even if the Plaintiff reported and paid each of the instant officetelss after the purchase of this case’s officetels, it is insufficient to view this case’s officetels as business facilities, and on the contrary, it is reasonable to accept this part of this case’s officetels as well as the Plaintiff’s assertion that it constitutes “house under the Income Tax Act.”

D. Sub-committee

Therefore, the instant disposition is lawful.

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.