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Reasons
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(영문) 서울고등법원 2015.01.15 2014누51939
양도소득세부과처분취소
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1. Revocation of a judgment of the first instance;

2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

Reasons

1. Among the reasons for the decision of the court of first instance on this part, the part concerning the reason for the decision on this part of the disposition is as follows: ① (a) the part concerning “transfered to the second part of the decision of the court of first instance” (the date of registration of ownership transfer) and ② (b) the part concerning “converted acquisition value as KRW 675,978,301” in the second part of the second part is as follows: “The converted acquisition value as KRW 675,978,301, KRW 338,242,40, KRW 338,842,621, KRW 594,846,621, KRW 3621, KRW 362,91,08, etc.”; and (c) the part concerning “converted acquisition value as to “the converted acquisition value as KRW 594,846,621, KRW 362,91,08, etc.” in the second part of the decision of the court of first instance and the second part are as follows

2. Whether the instant disposition is lawful

A. In accordance with Article 89(1)3 of the former Income Tax Act (amended by Act No. 10625, May 2, 2011; hereinafter “ Income Tax Act”) and Article 154(3) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 22950, Jun. 3, 2011; hereinafter “Enforcement Decree”) that applies to the instant disposition in the form of the combination of the Plaintiff’s instant building and its site (hereinafter “instant real estate”) with the part of housing (second floor) and the part other than housing (first floor), the instant building should be deemed as housing and calculate gains on transfer.

However, since the defendant calculated the transfer margin by dividing the first floor of the above building into the commercial building and the second floor into the housing, the above disposition is unlawful.

Furthermore, the head of Gwanak-gu in Seoul Special Metropolitan City imposes property tax on the real estate of this case on the whole before the disposition of this case, considering the circumstances where property tax has been imposed on the real estate of this case.

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