Review Transfer 2008-0179 ( November 24, 2008)

The meaning of a house not occupied at the time of acquisition of a newly-built house

A house that has not been occupied at the time of acquisition in relation to a reduction or exemption of a newly-built house refers to a house that had not been occupied by other persons as well as the acquisitor at the time of acquisition of the house by the purchaser.

The contents of the decision shall be the same as attached.

Article 97-2 (Special Cases of Reduction or Exemption of Transfer Income Tax on Newly-Built Rental Houses)

Article 2 (Definitions of Rental Housing Act)

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 5,761,544 for the Plaintiff on August 1, 2008 shall be revoked.

1. Circumstances of the disposition;

가. 김△△는 1992. 4.경 신축된 주택인 오산시 ★동 552-4 □□아파트 103동 1403 호(전용면적 : 84.87㎡. 이하 '이 사건 주택'이라고 한다)를 취득한 다음, 그 무렵 이 사건 주택에 입주하여 1996. 7.경까지 거주하였다.

B. On November 29, 2001, the Plaintiff acquired the instant house from Kim △△△△△, and thereafter leased the said house to another person from that time, and thereafter completed the registration of the rental business around October 22, 2003.

C. On September 28, 2007, the Plaintiff transferred the instant house to the 115,00,000 won, and on November 14, 2007, calculated the transfer income amount of the instant house as KRW 36,10,843, and the transfer income amount already reported as KRW 28,602,50, and the calculated tax amount as KRW 12,294,902, and filed a preliminary return on the tax base of transfer income, and filed a preliminary return on the tax base of transfer income, on the ground that the instant house falls under the purchased rental house exempted from the transfer income tax under Article 97-2 (1) 2 of the Restriction of Special Taxation Act (amended by Act No. 9272, Dec. 26, 2008; hereinafter referred to as the “Act”), the Plaintiff reported that the said calculated tax amount constituted the purchase rental house exempted from the transfer income tax under Article 97-2 (1) 2 of the said Act.

D. Accordingly, the Defendant issued a disposition of this case imposing capital gains tax of KRW 5,761,544 (the amount calculated by adding additional tax on the capital gains tax reported No. 7,135,570 and subtracting the 1,427,114) for the transfer of the instant house, on August 1, 2008, on the ground that the instant house is a house that had already been occupied and resided by the former owner at the time of the Plaintiff’s acquisition, and thus, it does not constitute a purchased rental house exempted from capital gains tax under the above provision, deeming that it does not constitute a purchased rental house for which the former owner had already occupied at the time of the Plaintiff’s acquisition.

[Reasons for Recognition] A. B. Entry of Evidence Nos. 1-2, 2-2 through 5, and the purport of the body before oral argument

2. Whether each of the dispositions of this case is legitimate

A. The plaintiff's assertion

Article 97-2 (1) 2 of the Act provides that "a house that has not been occupied at the time of acquisition" as a requirement for a purchased rental house exempt from capital gains tax shall be deemed to refer to a house that has not been occupied by a purchaser. Since the Plaintiff purchased the house of this case and leased it to another person without occupying it, the house of this case shall be deemed to constitute a house that has not been occupied at the time of acquisition under the above provision, and therefore, the transfer of the house of this case shall be exempted from capital gains tax.

(b) Related statutes;

It shall be as shown in the attached Form.

C. Determination

According to the provisions of Article 97-2 (1) 2 (a) and (b) of the Act, in a case where a national housing is leased for five or more years after August 20, 199, among purchased rental housing under the Rental Housing Act that was newly built or newly built on or before August 20, 199, or that was not occupied on or after August 19, 199, (b) that was not occupied on or after August 20, 199, the acquisition and lease of a house (limited to a house that was not occupied at the time of acquisition) shall be exempted from the transfer income tax on the income accrued from the transfer of the house concerned. ① In a case where a house is leased for five or more years after the commencement of acquisition and lease after August 20, 199, it means a house which was occupied at the time of acquisition or newly built on or after August 20, 199 without any specific statutory interpretation requirements or statutory interpretation requirements other than the principle of no taxation without the law.

However, as recognized earlier, the Plaintiff already occupied the instant house before acquiring the instant house on November 29, 2001 and resided therein. Therefore, the instant house does not constitute “a house that has not been occupied at the time of acquisition” as prescribed by Article 97-2(1)2 of the Act, and thus, it cannot be exempted from capital gains tax pursuant to the said provision (In addition, the instant house is not a newly built house after August 20, 199, and it does not fall under item (a) above, and it does not fall under item (b) above, since it is not a house that has not been occupied as of August 20, 199, and therefore, it does not fall under item (b) above since it does not fall under item (b) above. Therefore, the said provision cannot be applied in light of this point).

3. Conclusion

Therefore, the plaintiff's claim seeking revocation of each of the dispositions of this case is dismissed as it is without merit. It is so decided as per Disposition.