National High Court Decision 2007No4067 ( December 27, 2007)

Whether rental housing leased for not less than five years in determining one house for one household shall apply regardless of the acquisition period;

If all residents possessing five or more units of rental housing on the basis of the date of transfer regardless of the period of acquisition or the period of lease, who have acquired five or more units of rental housing, are to be used as a means to avoid income tax by acquiring rental housing on the basis of the date of transfer as well as the legislative purpose.

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

l. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposition of KRW 15.039.530 of each transfer income tax against the Plaintiffs on June 1, 2007 is revoked.

1. Details of the disposition;

A. On January 1, 1977, the plaintiffs acquired 242,330,00 won as a liquidation amount for the transfer of ○○-dong Housing in the process of a reconstruction project after completion of a reconstruction project on July 7, 2006, under the premise that the plaintiffs owned 242,330,000 won as a liquidation amount for the transfer of ○○-dong Housing in the process of a reconstruction project, and thus, they reported 23,224,000 won and paid it to the defendant on July 7, 2006, under the premise that each of the following rental houses was owned by ○○-dong Housing at the time of transfer, and is not subject to non-taxation for one household.

B. Around 1978, the plaintiffs acquired and owned 4 multi-household housing located in ○○○-16, Seoul, 00 ○○-16 m2, respectively. On the other hand, on April 25, 2006, one household of the same ○○-78 m2 (802, 31.12 m2) was registered with the Seocho-gu Office as a housing rental business operator under Article 6 of the Rental Housing Act. The plaintiffs reported transfer income tax on the above ○○ house, and paid 10 m20 m20 m26 m2, which were excluded from the number of houses owned at 10 m20 m2, which were not owned at 15 m20 m25 m2, which were non-taxable housing, and the defendant received a request for correction from the plaintiff 25 m3 m2, 2006 m3 m3, 2006 m2.

[Ground of Recognition] Unsatisfy, Gap evidence 1 to 5, Eul evidence l (each number mark)

Statement, the purport of the whole pleading

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

According to the provisions of Article 97 (2) of the Restriction of Special Taxation Act, in applying the provisions of Article 89 (1) 3 of the Income Tax Act, rental housing shall not be deemed a house owned by the relevant resident. However, in this case, only the term "rental housing" is defined as "rental housing," and there is no clear stipulation as to the scope of the rental housing. Thus, Article 97 (1) and (2) of the same Act does not limit the rental housing of 5 or more units to "rental housing leased for 5 or more years after commencement of the lease," as Article 97 (1) of the same Act and Article 97 (2) of the same Act as Article 97 (2) of the same Act, if the housing was acquired after the date of the transfer, and is leased for 5 or more units as of the date of the transfer, it shall be interpreted that the provisions of the above Article 89 (1) 3 and (4) of the same Act are not included in the number of houses owned by the relevant resident at the time of the first sale of 1 house or non-taxation.

C. Determination

(4) If a resident prescribed by the Presidential Decree transfers a house after renting it for 5 or more years under the provisions of Article 97 (2) of the Restriction of Special Taxation Act by failing to meet the requirements for the transfer of the house, it shall be deemed that such a resident would have violated the provisions of Article 97 (1) of the same Act, and thus, it shall be deemed that such a resident would have violated the provisions of Article 97 (1) of the Restriction of Special Taxation Act and thus, it would be unreasonable to interpret the provisions of Article 97 (2) of the same Act to allow the tax reduction or exemption for the purpose of the transfer of the house concerned (hereinafter referred to as "rental house"), and to interpret the provisions of Article 97 (2) of the same Act to have been applicable to the transfer of the house for 5 or more years by failing to meet the requirements for the first time for the transfer of the house without the consent of the resident. The interpretation of the provisions of the above Article shall be interpreted to have been in accordance with the legislative purport of the Act, such as the first sale and exemption of the house.

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