Seocho 2010west 1545 (Law No. 16, 2010)

Temporary 1 household 2 houses non-taxable

From July 27, 2001, the date of acquisition of the house subject to reconstruction, one year elapsed from July 27, 2001, and since the house subject to reconstruction has a reconstruction house approved as of the date of transfer, this disposition as two houses for one household is justifiable.

2010Gudan27526 Revocation of Disposition of Imposing capital gains tax

○ ○

○ Head of tax office

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposition of capital gains tax of KRW 6,181,120 against the Plaintiff on December 1, 2009 shall be revoked.

1. Details of the disposition;

A. On January 20, 2001, the Plaintiff acquired and owned ○○○○○○-dong 491-1 ○○ Village 501 dong 1702 (hereinafter “instant apartment”) and acquired 302 dong 25 dong 302 (hereinafter “house subject to reconstruction in this case”) on July 27, 200 of the same year. △△△△△△△△-dong 25 dong 25 dong 302 (hereinafter “house subject to reconstruction in this case”).

B. Upon approval of the business plan on the instant reconstruction house on March 16, 2002 and implementation of a reconstruction project, the Plaintiff was selected as the occupant of △△△△△△△△ apartment, 850 Do 102 2204 Do 2204 (hereinafter “the instant reconstruction apartment”) that is scheduled to be reconstructed by investing the instant reconstruction house in the ○○ Reconstruction Association, and the rebuilding apartment was completed on December 28, 2005 and obtained approval for use (use inspection) on February 13, 2006 after moving into the instant reconstruction apartment.

C. On January 25, 2007, the Plaintiff transferred the instant at issue apartment to Nonparty A (the conclusion of a sales contract on December 20, 2006, receipt of ownership transfer registration on January 25, 2007) and filed a transfer income tax report with the Defendant on the ground that the instant at issue apartment was transferred within one year from the date of occupancy ( February 13, 2006) which is a new acquisition date of the instant reconstruction apartment, the Plaintiff submitted a non-taxation report on transfer income tax on the ground that it constitutes a private house under Article 155(1) of the former Enforcement Decree of the Income Tax Act.

D. However, on December 1, 2009, the Defendant issued the instant disposition imposing the Plaintiff the transfer income tax for the year 2007 and the transfer income tax for the year 2007 and the transfer income tax for the first time 6,181,210 won (including the report and additional payment for arrears) on the ground that the instant apartment cannot be deemed the subject of non-taxation even if it newly acquired the instant reconstruction apartment after one year from the use approval date ( December 28, 2005).

[Ground of recognition] Facts without dispute, Gap evidence 1 through 11, 14, Eul evidence 1 and 2, the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The instant disposition is unlawful for the following reasons.

① After acquiring the instant apartment, the Plaintiff owned two houses by acquiring the instant apartment after acquiring the instant apartment. However, the Plaintiff became one house per household in the instant apartment, as it was destroyed by the reconstruction project after the lapse of about seven months, which was seven months before the lapse of the special period for temporary two houses under Article 155(1) of the Enforcement Decree of the Income Tax Act, which was the special period for temporary two houses under Article 155(1). After that, the Plaintiff moved into the instant apartment on February 13, 2006 and transferred the instant apartment on December 20, 206, which was within one year from the time of the new acquisition of the instant apartment. Accordingly, based on the acquisition date of the instant apartment, the Plaintiff transferred the instant apartment within one year from the date of the instant reconstruction apartment. As such, the instant apartment falls under the case of transferring the instant apartment within one year, which is the special period for temporary two houses at the time of transferring the instant apartment, the Plaintiff should be regarded as one house in transferring the instant apartment.

② Even if the transfer of the key apartment does not constitute a special case of non-taxation, the key apartment of this case is subject to Article 99-3 of the Restriction of Special Taxation Act in the event that the apartment of this case is transferred after the lapse of five years from the acquisition date of the key apartment of this case (the relevant newly-built apartment), the transfer income accrued for five years from the acquisition date of the relevant newly-built apartment shall be deducted from the income subject to income subject to transfer income tax. The calculation of transfer income accrued for five years is "transfer incomex (Standard market price - at the time of acquisition - at the time of acquisition) ± (Standard market price at the time of acquisition at the time of acquisition) ± (Standard market price at the time of transfer - at the time of acquisition at the time of acquisition). Since the standard market price at January 20, 2006, which was the same as the standard market price at which the Plaintiff transferred the key apartment of this case was 176,000,000 won, and eventually, the transfer income tax income accrued for five years is 0 won.

③ Even if the transfer of the instant apartment does not constitute a special case of non-taxation, the Plaintiff submitted a transfer income tax return on the premise of non-taxation, and thus, cannot impose a report or additional tax on the Plaintiff.

(b) Related statutes;

C. Determination

(1) As to the time of acquisition of the reconstruction apartment of this case (as to Plaintiff’s assertion ①)

Article 155 (1) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 20720 of Feb. 29, 2008) provides that "where one household having one house in Korea has come to possess two houses temporarily by acquiring another house before transferring the house, the former house shall be transferred within one year from the date of acquiring another house."

The purport of the above provision is to: (a) where one household which owns one house in Korea temporarily becomes two houses by acquiring another house before transferring the house; and (b) to transfer the previous house within one year from the date of acquiring another house, the transfer income tax shall not be imposed on the transfer of one house by one household; and (c) even if a member of a reconstruction association provided the relevant association with an existing house or site and acquired a newly-built house in accordance with the relevant project plan, it does not constitute a acquisition of a house separate from the existing house (see Supreme Court Decision 2007Du8973, Sept. 25, 2008).

In full view of the facts acknowledged above in light of the above legal principles, the plaintiff provided the reconstruction association with the housing subject to reconstruction of this case and acquired the reconstruction apartment of this case in accordance with its business plan, and it is not deemed that the plaintiff acquired the reconstruction apartment of this case, which is separate from the housing subject to reconstruction of this case

Therefore, it is reasonable to view that the date of acquiring the reconstruction apartment of this case was July 27, 2001, the acquisition date of the reconstruction apartment of this case, which is the first day of the acquisition date of the reconstruction apartment of this case. Since one year, which is the special period of temporary two houses under Article 155 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 20720 of Feb. 29, 2008), has passed at the time of transfer of the apartment of this case, the plaintiff cannot be deemed as a temporary two houses with non-taxable transfer income tax. The plaintiff's assertion on different premise is without merit (the plaintiff moved to the reconstruction apartment of this case of this case of this case of this case of this case of this case of this case of this case of this case of this case of 13 years or less, and the plaintiff transferred the apartment of this case of this case of this case of this case of this case of this case of this case of this case of this case of this case of this case of this case of this case of this case of this case of this case of 2008.26.

(2) As to the time of transfer of the key apartment of this case (as to Plaintiff’s assertion 2)

The Plaintiff asserted that the transfer registration of ownership was received on December 20, 2006 with respect to the time of the transfer of the instant at issue apartment, and asserted that the above ② assertion was made on December 20, 2006. However, according to the above facts, the date of conclusion of a sales contract on December 20, 2006 and the date of receipt of ownership transfer registration was January 25, 2007, and therefore, the Plaintiff’s above assertion was without merit.

(3) As to the imposition of report and additional tax for arrears (as to Plaintiff’s assertion)

Under the tax law, penalty taxes are administrative sanctions imposed in accordance with the law in order to facilitate the exercise of the right to impose taxes and the realization of tax claims where a taxpayer violates a return and tax liability, etc. as prescribed by the law without justifiable grounds, and the taxpayer’s intention and negligence is not considered. The land or mistake in the law does not constitute justifiable grounds. In addition, even if a taxpayer’s duty to pay taxes beliefs a tax official’s wrong explanation and fails to perform his/her duty to pay taxes, if it is evident that it is against the relevant law, such reasons alone do not constitute a case where there is a justifiable reason (see Supreme Court Decision 200Du5944, Apr. 12, 2002)

In the instant case, solely on the ground that the Plaintiff asserted, it is not a ground to determine the imposition of penalty tax against the Plaintiff as unlawful. Therefore, the Plaintiff’s assertion on a different premise is without merit.

(4) Sub-determination

Therefore, the Plaintiff’s above assertion is without merit and the instant disposition is lawful.

3. Conclusion

Thus, the plaintiff's claim is dismissed as it is without merit.