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(영문) 양도소득세 감면 대상 신축주택 해당 여부(취소)
조세심판원 조세심판 | 2006-08-31 | 국심2006서1581 | 양도
[Case Number]

National High Court Decision 2006No1581 (Law No. 31, 2006)

[Items]

Transfer

[Types of Decision]

Revocation

[Summary of Decision]

Two provisions may apply simultaneously to a case where a high-priced house meeting the requirements for non-taxation for one house for one household is a newly-built house under Article 99-3 of the Restriction of Special Taxation Act.

[Related Acts]

Transfer income tax on the purchaser of Newly-built houses under Article 99-3 of the Restriction of Special Taxation Act / Special Taxation for transfer income tax on the purchaser of Newly-built houses

【Disposition】

The imposition of 25,539,830 won for a special agricultural and fishing villages tax on April 11, 2006 by the head of the OO head of the tax office shall be revoked.

【Reasoning】

1. Summary of disposition;

On November 15, 2005, the claimant transferred 106-dong 401 (11.32m2m2 of exclusive use area; hereinafter “market apartment”) to 998 million won in order to calculate the transfer income tax in January 2006 as the actual transaction price. The claimant is subject to the reduction and exemption of the transfer income tax under Article 99-3 (1) of the Restriction of Special Taxation Act and applied the tax exemption up to 60 million won in the transfer income tax by calculating the transfer margin and the calculated tax amount for the transfer income tax exceeding 60 million won, and filed an application for reduction and exemption of the transfer income tax for 65,113,280 won in the transfer income tax by calculating the transfer margin and the calculated tax amount for the transfer income tax exceeding 600 million won.

The disposition agency is a high-priced house that satisfies the requirements for non-taxation for one household under Article 89 subparagraph 3 of the Income Tax Act, and falls under the reduction and exemption under Article 99-3 (1) of the Restriction of Special Taxation Act, but it is not applied at the same time to the taxpayer by selecting a favorable method for tax burden, and applied the transfer margin and calculated tax amount on the total transfer value of the at issue apartment, and applied the reduction and exemption under Article 99-3 (1) of the Restriction of Special Taxation Act to the total calculated tax amount, and calculated the special tax for rural development for the reduced and exempted tax amount. On April 11, 2006, the agency decided and notified 25,539,830 won excluding 13,02,650 won

On May 3, 2006, the claimant appealed against this and filed an appeal for adjudication.

2. Opinions of the claimant and disposition agency;

A. The claimant's assertion

(1) In the event that the transfer value of a house meeting the requirements for one house for one household under the Income Tax Act exceeds 600 million won, the transfer value is non-taxable until 600 million won, and thus, the transfer income tax on the transfer margin exceeding 600 million won is calculated and paid by calculating the transfer income tax on the transfer margin exceeding 600 million won without calculating the tax amount. Since the transfer income tax reduction or exemption under the Restriction of Special Taxation Act is applied under the premise that the transfer income tax should be calculated, one house for one household, which is a high-priced apartment, should be calculated by deeming the amount of special rural development tax exceeding 60 million won as the transfer income tax reduced or exempted, and there is no explicit provision that the tax exemption on high-priced

(2) Despite the fact that one house of the same household is exempt from taxation under the Income Tax Act, no tax is imposed until 600 million won. On the other hand, a house exceeding 600 million won bears 20% of the calculated tax amount of capital gains tax on the total transfer value and thus does not meet the tax balance.

(b) Opinions of disposition agencies;

In calculating the transfer income amount under Article 99-3 of the Restriction of Special Taxation Act as a high-priced house meeting the requirements for non-taxation for one household under Article 89-3 of the Income Tax Act, the two laws shall not apply at the same time, and the taxpayer shall select and apply a method favorable for tax burden (Sag-1517, August 26, 2005). Thus, the tax reduction or exemption under Article 99-3(1) of the Restriction of Special Taxation Act shall apply to the calculated tax amount on the total transfer value of the at issue apartment, and the disposition of this case imposed

3. Hearing and determination

A. Key issue

In a case where the key apartment is a high-priced house meeting the requirements for non-taxation for one house for one household and falls under a newly-built house under Article 99-3 of the Restriction of Special Taxation Act, whether the provisions on reduction or exemption under the Restriction of Special Taxation Act and the provisions on non-taxation for

B. Relevant statutes

(1) Special taxation for the acquirer of Newly-built houses under Article 99-3 of the Restriction of Special Taxation Act

- Prior to the amendment by Act No. 6762 of Dec. 11, 2002

(1) With respect to the income accruing from transfer of a newly-built house (excluding a housing construction business operator) falling under any of the following subparagraphs within five years from the date of acquisition, the tax amount equivalent to 100/100 of the capital gains tax shall be reduced or exempted, and where the relevant newly-built house is transferred after the lapse of five years from the date of acquisition, the capital gains accruing for five years from the date of acquisition of the relevant newly-built house shall be subtracted from the income amount subject to taxation of the capital gains tax: Provided, That this shall not apply where the relevant newly-built house falls under the declass house that is excluded from the object of non-taxation of the capital gains tax pursuant to subparagraph

1. In cases of newly-built house acquired from a housing developer:

A newly-built house acquired by a person who first concludes a sales contract and pays a down payment with a housing constructor during the period from May 23, 2001 to June 30, 2003 (hereafter in this Article, referred to as the “newly-built house”) (including such houses as determined by the Presidential Decree, which are acquired through a housing association under the Housing Construction Promotion Act or an redevelopment association under the Urban Redevelopment Act): Provided, That a house which has been occupied as of the date of a sales contract, or has

2. Where a newly-built house (including a house acquired by a housing association under the Housing Construction Promotion Act or a member as prescribed by the Presidential Decree through an redevelopment association under the Urban Redevelopment Act);

A newly-built house that has obtained approval or inspection for use (including approval for temporary use) within the newly-built house acquisition period

(4) In applying paragraph (1), the calculation of transfer income accruing for five years from the date of acquisition of newly-built house and other necessary matters shall be prescribed by Presidential Decree.

(2) 【Special Taxation for Transfer Income Tax for Purchasers of Newly-built Houses】-amended by Act No. 6762 on December 11, 2002

(1) With respect to the income accruing from a transfer of a newly-built house (including the land attached to the house, which is less than twice the total floor area of the relevant building; hereafter in this Article, the same shall apply) falling under any of the following subparagraphs located in an area other than the area prescribed by the Presidential Decree, in which a resident (excluding a housing construction business operator) increases or is likely to increase rapidly in real estate prices in consideration of a national consumer price inflation rate and a rising rate of national house trade prices, within five years from the date of its acquisition, the tax amount equivalent to 100/100 of transfer income tax shall be reduced or exempted, and where the relevant newly-built house is transferred after the lapse of five years from the date of its acquisition, the transfer income accruing for five years from the date of its acquisition shall be subtracted from

(4) In applying paragraph (1), the calculation of transfer income accruing for five years from the date of acquisition of newly-built house and other necessary matters shall be prescribed by Presidential Decree.

(3) The Addenda to the Restriction of Special Taxation Act amended by Act No. 6762 on December 11, 2002

Article 1 (Enforcement Date) This Act shall enter into force on January 1, 2003.

Article 29 Transitional Measures concerning Special Taxation of Transfer Income Tax for Purchasers of Newly-Built Houses

(2) Where a newly-built house under Article 99-3 (1) 2 commences its construction work for the newly-built house under this Act before this Act enters into force, and has obtained the approval for use or inspection for use (including the approval for temporary use) before June 30, 2003, the previous provisions shall, notwithstanding the amended provisions of Article 99-3 (1), be applied.

(4) Article 99-3 of the Enforcement Decree of the Restriction of Special Taxation Act 【Special Taxation for Transfer Income Tax for Newly-built Houses Purchasers

(2) In applying the text of Article 99-3 (1) of the Act, any transfer income accruing for five years from the date of acquisition of the newly-built house shall be the amount computed by applying mutatis mutandisArticle 40 (1).

(5) Article 40 (Abatement or Exemption, etc. of Transfer Income Tax on Purchasers of Real Estate Subject to Restructuring)

(1) For the purpose of Article 43 (1) of the Act, the term “transfer income accruing for 5 years from the date of acquisition of real estate subject to restructuring” means the amount calculated by the following formula from among the transfer income under Article 95 (1) of the Income Tax Act or the transfer margin under Article 99 (1) of the Corporate Tax Act (hereafter in this paragraph,

The transfer income amount 】 (Standard market price at the time of its acquisition - the standard market price at the time of its acquisition)/ (the standard market price at the time of its transfer).

(6) Article 89 of the Income Tax Act

- Prior to the amendment by Act No. 6781 of Dec. 18, 2002

No income tax on capital gains (hereinafter referred to as “capital gains tax”) shall be levied on the following incomes:

3. Income accruing from a transfer of one house for one household (excluding high-class houses the total floor area, value, facilities, etc. of which exceed the standards prescribed by Presidential Decree of residential buildings) and its appurtenant land within the area calculated by multiplying the area of land on which a building is built by the ratio prescribed by Presidential Decree by area;

(7) Article 89 of the Income Tax Act

- Of December 18, 2002, amended by Act No. 6781

No income tax on capital gains (hereinafter referred to as “capital gains tax”) shall be levied on the following incomes:

3. Income accruing from a 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 land to which the building is fixed by the ratio as determined by region under the Presidential Decree; and

(8) Article 156 of the Enforcement Decree of the Income Tax Act:

- Prior to the amendment by Presidential Decree No. 17825 of December 30, 202

(1) The term "high-class house, the total floor area, value, facilities, etc. of which exceed the standards prescribed by Presidential Decree" in subparagraph 3 of Article 89 of the Act means a house falling under any of the following subparagraphs and land annexed thereto:

2. An apartment house (including a tenement house, but excluding the case deemed to be a detached house under the provisions of Article 155 (15)) whose exclusive area (including the area of an underground room exclusively used for residence) is not less than 149 square meters and whose actual transaction price at the time of transfer shall be not less than

(9) Article 156 of the Enforcement Decree of the Income Tax Act :

- Of December 30, 2002, amended by Presidential Decree No. 17825, Dec. 30, 2002

(1) The term “high-priced house the value of which exceeds the standard determined by the Presidential Decree” in subparagraph 3 of Article 89 of the Act means a house and its appurtenant land the sum of the actual transaction values at the time of transfer (where a part of a house is transferred, it refers to the amount calculated by dividing the total sum of the actual transaction values by the ratio occupied

(10) 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 pursuant to Article 97 from the total income of the transfer income as prescribed in Article 94 (hereinafter referred to as “transfer value”).

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

(11) Article 160 (Calculation of Gains on Transfer, etc. of Expensive House)

(1) The gains on transfer and the amount of special long-term holding deduction for assets falling under expensive houses under Article 95 (3) of the Act shall be the amount calculated by the formula in each of the following subparagraphs. In this case, where the relevant housing or lands appurtenant thereto fall under the assets transferred without registration, the relevant housing or lands appurtenant thereto shall be calculated by multiplying 600 million won by the ratio occupied by the transfer value of relevant housing or lands appurtenant thereto in the aggregate of the transfer value

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

Transfer margin under Article 95 (1) of the Act 】 (transfer value £­ 600 million won) / Transfer value)

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

The special long-term holding deduction amount under Article 95 (2) of the Act 】 (transfer value £­ 600 million won)/ Transfer value).

(12) Article 2 (Definitions of Act on Special Rural Development Tax)

(1) For the purpose of this Act, the term "reduction or exemption" means a case where no income tax, corporate tax, customs, acquisition tax or registration tax is levied or reduced under the Restriction of Special Taxation Act, the Customs Act or the Local Tax Act, which falls

1. Non-taxation, tax exemption, tax reduction or exemption, tax credit or income deduction;

(13) Article 3 of the Act on Special Rural Development Tax.

Those who fall under one of the following subparagraphs shall be liable to pay the special rural development tax under the provisions of this Act:

1. A person who is exempted from income tax, corporate tax, customs, acquisition tax or registration tax pursuant to Acts prescribed in the main sentence of Article 2 (1);

(14) Article 5 (Tax Base and Tax Rate for Special Rural Development Tax)

(1) The amount of special rural development tax shall be calculated by multiplying the tax base by the tax rate on each of the following tax bases:

호 별과세표준세율1조세특례제한법·관세법 및 지방세법에 의하여 감면을 받는 소득세·법인세·관세·취득세 또는 등록세의 감면세액(제2호의 경우를 제외한다)100분의 20

C. Facts and determination

(1) The claimant's key apartment transferred on November 15, 2005 is a high-priced house meeting the requirements for non-taxation for one household under Article 89 (3) of the Income Tax Act, and falls under a newly-built house subject to abatement or exemption of transfer income tax under Article 99-3 (1) of the Restriction of Special Taxation Act, there is no dispute between the disposition office and the

(2) The claimant asserts that the transfer value of a house meeting the requirements for one house for one household under the Income Tax Act exceeds 600 million won, and there is no tax liability for transfer income tax until 600 million won, and thus, the transfer income tax on the transfer margin exceeding 600 million won should be calculated, and the transfer income tax should be imposed with the tax amount reduced or exempted. On the other hand, the disposition agency claims that when calculating the transfer income pursuant to Article 99-3 of the Restriction of Special Taxation Act as a high-priced house meeting the requirements for tax exemption for one household under subparagraph 3 of Article 89 of the Income Tax Act, the two Articles are not applied at the same time,

(A) Article 3 subparag. 1 of the Act on Special Rural Development provides that "a person who has been subjected to the reduction or exemption of income tax, corporation tax, customs tax, acquisition tax or registration tax under the Acts stipulated in the main sentence of Article 2(1) shall be the person liable for special rural development tax, and Article 2(1) of the same Act provides that "the term "the reduction or exemption" means the one which falls under any of the following subparagraphs where no income tax, corporation tax, customs, acquisition tax or registration tax is imposed or reduced under the Restriction of Special Taxation Act, the Customs Act or the Local Tax Act," and subparagraph 1 of the same Article provides that "the tax

(B) Article 99-3(2) of the Restriction of Special Taxation Act provides that any transfer income in the reduction or exemption of a newly-built house shall be calculated by applying mutatis mutandis the provisions of Article 40(1) of the same Act, and Article 40(1) of the same Act provides that any transfer income pursuant to the provisions of Article 95(1) of the Income Tax Act shall be the transfer income pursuant to the provisions of Article 95(1) of the same Act, and Article

(C) Article 89 subparag. 3 of the Income Tax Act and Article 156(1) of the Enforcement Decree of the Income Tax Act provide that even in case of a single house for one household, capital gains tax shall not be imposed except for a house the transfer value of which exceeds 600 million won. Article 95(3) of the Income Tax Act and Article 160 of the Enforcement Decree of the Income Tax Act provide for the separate calculation method of capital gains for a high-priced house for one household, notwithstanding Article 9

(D) In light of the relevant laws and regulations comprehensively, special rural development tax is the tax base of income tax or corporate tax subject to reduction or exemption under the Restriction of Special Taxation Act, and in case of a recommendation that satisfies the requirements of non-taxation for one household under the Income Tax Act, the transfer income subject to reduction or exemption under the provisions of Article 99-3 of the Restriction of Special Taxation Act shall be the portion exceeding the transfer value calculated under the provisions of Article 95(3) of the Enforcement Decree of the Income Tax Act and Article 160 of the Enforcement Decree of the Income Tax Act. Therefore, the claimant's assertion that transfer income tax equivalent to the transfer value exceeding

4. Conclusion

This case's request for a trial is with merit as a result of the hearing, so it is decided as ordered in accordance with Articles 81 and 65(1)3 of the Framework Act on National Taxes.

August 31, 2006

chief judge of the National Tax Tribunal shall

National Tax Judge this Decree

Hexal Jiny

For the purpose of this title

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