National Tax Service Review and Transfer 201024 ( November 01, 2010)

It is not eligible for non-taxation for one household due to the failure to meet the housing requirements for two years;

If the apartment house is acquired and transferred to the members of the association after the acquisition of the apartment house by reconstruction, it is not recognized that he/she resided in the transfer apartment but has resided in the transfer apartment for a certain period to meet the non-taxation requirements for one house for one household in the house, so the taxation of capital gains tax is lawful.

2010Gudan27410 Revocation of Disposition of Imposing capital gains tax

Section AA

The Director of Gangnam District Office

September 27, 2011

October 25, 2011

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 KRW 82,310,740 for the Plaintiff on July 1, 2010 shall be revoked.

1. Details of the disposition;

A. On May 22, 1989, the Plaintiff acquired and owned O-dong 00-00 O-dong 000 O-dong 0, Gangnam-gu, Seoul (hereinafter “the instant apartment house”) on December 23, 2005, and again acquired O-dong 00-00 O-dong 00 O-BB apartment 00, 000 (hereinafter “the instant apartment house”) constructed as a reconstruction unit in the branch located in the instant apartment house on December 23, 2005.

B. On July 23, 2007, the Plaintiff transferred the apartment of this case in KRW 580,000,000, and the Plaintiff did not report the transfer income tax by deeming that it constitutes one house non-taxation for one household.

C. However, on July 1, 2010, the Defendant decided and notified the Plaintiff on July 1, 2010, on the ground that the Plaintiff did not have resided in the instant apartment house, and that the Plaintiff did not reside in the instant apartment house for at least two years, and the Plaintiff did not have any major issues of non-taxation for one household.”

[Reasons for Recognition] Unsatisfy, Gap evidence Nos. 1, Eul evidence Nos. 1 and 5, the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The Plaintiff resided in the instant apartment house for 4 years, 1 year and 6 months in the instant apartment house, and 5 years and 6 months in total, thereby satisfying the requirements for non-taxation on one house for one household. Therefore, even though the transfer of the instant apartment house constitutes non-taxation on one house for one household, the instant disposition that was otherwise reported is unlawful.

(b)a recognition;

(1) The Plaintiff acquired the instant apartment house on May 22, 1989, and acquired the instant apartment on December 23, 2005 due to the members’ parcelling-out portion after the cost of the instant apartment house was removed by reconstruction around 2003.

(2) On July 23, 2007, the Plaintiff transferred the instant apartment.

(3) The Plaintiff had resident registration and resided in the instant apartment from January 20, 2006 to July 30, 2007.

(4) The Plaintiff did not enter the resident registration in the instant tenement house.

[Reasons for Recognition] The above evidence, Gap evidence Nos. 2, 3 (including paper numbers), Eul evidence Nos. 2 through 4, and the purport of the whole pleadings

C. Determination

Article 89(1)3 of the Income Tax Act and Article 154(1) of the Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 22950, Jun. 3, 201)] of a house located in Seoul Special Metropolitan City as at the time of 2007, in order to be eligible for non-taxation for one house for one household, the period of possession of which is three years or more, and shall be residing for two years or more during the period of possession (see Article 89(1)3 of the Income Tax Act and Article 154(1) of the Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 22950, Jun. 3, 201). In this case, as seen earlier, the Plaintiff resided in the instant apartment house or the instant apartment house for one year and six months or more. However, with respect to whether the Plaintiff resided in the instant apartment house, the Plaintiff’s testimony alone does not have any other evidence to acknowledge that the Plaintiff resided in the instant apartment house for a different period.

(d)Indivate:

Therefore, since the Plaintiff did not reside in the instant apartment and the instant apartment house for not less than two years and did not meet the requirements for non-taxation on one house for one household, the instant disposition that the Plaintiff reported as such is lawful.

3. Conclusion

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