Cho Jae-2018-China-920 ( July 6, 2018)

Whether an officetel other than a public record can be viewed as a house

If an officetel is not a house on the public register, but a residential officetel for the purpose of residence is confirmed, it is necessary to determine non-taxation as a house regardless of the purpose of public register.

Articles 88 and 89 of the Income Tax Act

2018-Gu short-8836 Revocation of Disposition of Imposing capital gains tax

AA

oo Tax Director

on October 08, 2019

on October 05, 2019

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The Defendant’s imposition of capital gains tax of KRW 000 (including additional tax) for the year 2017 against the Plaintiff on November 1, 2017 shall be revoked.

1. Details of the disposition;

A. On December 28, 1987, the Plaintiff acquired and owned a 00-Gu 00, Seoul, 000 * apartment (hereinafter “instant apartment”) and transferred the purchase price to Nonparty BB in KRW 1.57 billion on April 3, 2017.

B. On June 30, 2017, the Plaintiff: (a) deemed that the transfer of the instant apartment constitutes a transfer of one house for one household as prescribed by Article 89(1)3(a) of the Income Tax Act and Article 154(1) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 28293, Sept. 19, 2017; hereinafter the same shall apply); (b) calculated gains on transfer based on the excess of KRW 900 million among the transfer values, and reported and paid KRW 26,483,730, the transfer income tax for the year 2017.

C. At the time of the transfer of the instant apartment, the Defendant: (a) deemed that an officetel owned by the Plaintiff’s spouse as CCC (hereinafter “the instant officetel”) constituted “house”; and (b) concluded that the transfer of the instant apartment does not constitute one house for one household; and (c) on November 1, 2017, determined and notified the Plaintiff of KRW 000 (including additional tax) of the transfer income tax for the year 2017 (hereinafter “the instant disposition”).

D. On January 23, 2018, the Plaintiff appealed to the instant disposition and filed an appeal with the Tax Tribunal, but the claim was dismissed on July 6, 2018.

[Ground of recognition] Facts without dispute, entry of Gap evidence 1 to 8, purport of the whole pleadings

2. Whether the instant disposition is lawful

A. Summary of the plaintiff's assertion

1) The allegation that the instant officetel does not constitute a “house”

Article 88 subparag. 7 of the Income Tax Act provides that "Housing refers to a building that is actually used for residential purposes, regardless of the permission or the classification of the public registers. In such cases, if the purpose of the officetel is unclear, the purpose of the public register shall be followed." The plaintiff's spouse, the plaintiff's spouse, leased the instant officetel to the non-party DoD until March 3, 2015, and thereafter he again leased the instant officetel to the non-party E on April 7, 2017 (the date of the instant apartment transfer (the date of April 3, 2017), which serves as the base date for determining one house for one household, has not used the instant officetel for residential purposes, and therefore, the instant officetel is not a house for residence. Furthermore, even if it is unclear whether the instant officetel has been used for residential purposes on the date of the instant apartment transfer, the purpose of the instant officetel is not a house for the purpose of the public register (Article 88 of the Income Tax Act)."

2) The allegation that the imposition of penalty tax is illegal

Considering that officetels’s inherent nature is not clear distinction between housing units and that there is a conflict of opinion in the interpretation of tax law related to the scope of housing units, there is a justifiable reason that the Plaintiff cannot be found to have caused the omission of the Plaintiff’s filing and paying capital gains tax under the premise that the instant officetel is not a house, and thus, the disposition imposing penalty tax among the instant disposition is unlawful.

B. Relevant statutes

Attached Form is as shown in the attached Form.

C. Determination

1) Whether the instant officetel constitutes a house

A) In a case where a transferor of a house owns another building, whether the other building constitutes “house” under Article 89(1)3 of the Income Tax Act and Article 154(1) of the former Enforcement Decree of the Income Tax Act shall be determined by whether the actual purpose of use is a building actually offered for a residence regardless of the usage classification of injury to the building. Even if the building is temporarily used for a non-residential purpose, the structure, function, or facilities are in a state suitable for a residence as the original residential purpose, and the residential function is maintained and managed as they are, and at any time, can be used for a house (see, e.g., Supreme Court Decision 2004Du14960, Apr. 28, 2005). Meanwhile, barring special circumstances, a taxpayer bears the burden of proving that the transfer of a house by one household, who is exempt from capital gains tax, is a house (see, e.g., Supreme Court Decision 2005Du8443, Dec. 23, 2005).

B) Examining the instant case in light of the aforementioned legal principles, in light of the following circumstances, it is insufficient to recognize that the instant officetels was not “house” at the time of the transfer of the instant apartment, but “business facility” that is not actually used for residential purpose, in fact, at the time of the transfer of the instant apartment, based on the evidence submitted by the Plaintiff, that the instant officetel was either a building used for residential purpose or used for residential purpose at any time. Rather, considering the following circumstances, the instant officetel transferred the instant apartment was merely viewed as a building used for residential purpose or used for residential purpose at any time.

(1) From March 7, 2013 to March 2, 2015, the instant officetel was transferred to a lessee EE’s domicile on the tenant’s resident registration date from April 7, 2017 to September 13, 2017, and the said lessee was registered as the location of the instant officetel. In light of such circumstances and the internal structure, status, etc. of the instant officetel, the said lessee appears to have used the instant officetel as a “residential” and there is no circumstance suggesting that he/she used or intended to use the said officetel for business purposes.

D. While the instant officetel’s purpose in the public register is “business facilities”, it appears that the owner or the third party could have used the instant officetel as a residence at any time without changing its purpose or structure, in light of its structure and form, such as toilets, singcing, gas cook, washing machine, laundry, and attached stuffs, which are equipped with shower facilities, were installed as a basic form. As such, the instant officetel appears to have been used as a residence without changing its purpose or structure. In that sense, the instant officetel appears to have been in a state suitable for residence and the residential function was maintained and managed as it is, as alleged by the Plaintiff, at the time of the transfer date of the instant apartment, even if the instant officetel had not been residing in the instant officetel at any time.

Fidelity argues that the Plaintiff completed the business registration on January 1, 2017, hereinafter “CCC’s intention to lease the instant officetel for business purposes. However, CCC is confirmed to have applied for the business registration retroactively to the location of the instant officetel on July 31, 2017 only after the Plaintiff transferred the instant apartment and completed the report of capital gains tax, and the opening date of the instant officetel was the location of the instant officetel on January 1, 2017 (written evidence No. 10 and No. 6).

x) From March 16, 2018 to March 15, 2019, the Plaintiff asserted that the FF, who leased the instant officetel, was an advertising film producer that started on October 8, 2009, used the instant officetel for business purposes. In light of these facts, the CCC can conclude that the instant officetel had an intention to use (lease) the instant officetel for business purposes. However, the CCC leased the instant officetel to FF not only one year after the date of the instant apartment transfer, but also one year after the date of the instant apartment transfer, and as confirmed by the Defendant’s performer visiting and confirmed the instant officetel on January 2019, considering that the FF’s workplace did not guide the first floor signboard but also installed any signboard outside the instant officetel, it is difficult to conclude that the FF used the instant officetel for business purposes.

C) Ultimately, the Defendant’s disposition of this case is justifiable on the premise that the instant officetel constitutes “house” and the Plaintiff’s assertion disputing this is not acceptable.

2) The allegation that the imposition of penalty tax is illegal

In full view of all the circumstances revealed in the pleadings of the instant case, including the internal structure and status of the instant officetel as seen earlier, and the fact that the instant officetel was leased before and after the time of transfer of the instant apartment, and that the Plaintiff and the owner of the instant officetel were married parties, etc., the Plaintiff appears to have recognized or could have recognized that the instant officetel was a building used for residential purposes or a house that can be used for residential purposes at any time because the instant officetel was used for residential purposes, or its residential function is maintained and managed as it is, unlike the purpose in the public record, unlike the purpose in the transfer of the instant apartment, and thus, the Plaintiff’s assertion

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.