Supreme Court-2012-Du-28025

Appellate Court 2010No3556 ( October 17, 2011)

Period of special long-term holding deduction

The special deduction rate for long-term possession should be applied by adding up the housing portion and the holding period of the previous combined house to one house for the previous combined use, and the portion corresponding to the commercial portion of the previous combined use house should be calculated by calculating the holding period respectively from the commercial portion of the previous combined use house and the special deduction rate for the possession should be applied separately.

Article 95 (2) of the Income Tax Act

2014Nu7253 Revocation of revocation of request for rectification of capital gains tax

KimA

Head of Yongsan Tax Office

on April 04, 2014

December 1, 2014 09

December 23, 2014

1. The part against the defendant in the judgment of the first instance shall be revoked;

2. The plaintiff's claim corresponding to the above revoked part is dismissed.

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

the Gu Office's place and place of action

1. Purport of claim

The defendant's decision revoking the rejection disposition against the plaintiff on August 10, 2010 regarding the transfer income tax belonging to the year 2010.

2. Purport of appeal

Judgment like the Disposition

1. Details of the disposition;

This court's explanation about the couple is the same as the corresponding part of the reasoning of the judgment of the court of first instance. Thus, this court's explanation is citing it in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

2. Whether the disposition is lawful;

A. Summary of the Plaintiff’s assertion and relevant statutes

This court's explanation about the couple is the same as the corresponding part of the reasoning of the judgment of the court of first instance. Thus, this court's explanation is citing it in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

B. Determination

1) Relevant legal principles

Article 94 (1) 1 of the former Income Tax Act provides for "the income accruing from the transfer of land or building" as one of the capital gains subject to taxation, and Article 95 (2) provides for the special long-term holding deduction amount to be deducted from gains from transfer, and Article 95 (1) of the former Income Tax Act provides for "the amount calculated by multiplying the gains from transfer of the asset under Article 94 (1) 1 of the Income Tax Act by the deduction rate by holding period prescribed in Table 1 (from 10/100 to 30/100 according to the holding period) for the assets the holding period of which is not less than three years, and in cases of one house for one household prescribed by Presidential Decree, "in the proviso, the amount calculated by multiplying the gains from transfer of the asset by the deduction rate by holding period prescribed in Table 2 (from 24/100 to 80/100 according to the holding period)" and the main sentence of Article 95 (4) provides that "the holding period of the asset shall be from the acquisition date of the asset."

In addition, Article 159-2 of the former Enforcement Decree of the Income Tax Act provides that "one house for one household prescribed by Presidential Decree" in the proviso to Article 95 (2) of the Act means a house in which one household owns one house in the Republic of Korea as of the date of transfer, and Article 154 (8) 1 of the former Enforcement Decree of the Income Tax Act provides that "in calculating the residence period or retention period of one house for one household, if it is reconstructed due to aging, etc. during residence or possession, the residence period and retention period of the destroyed house and reconstructed house shall be aggregated." Meanwhile, the proviso of Article 154 (3) of the Enforcement Decree of the Income Tax Act provides that "if the total floor area of the house is smaller than or equal to the total area of the part other than the house, the part other than the house shall not be deemed a house."

In light of the contents of the above provisions and the purport of separately setting the special deduction rate for long-term holding of one house for one household, the period of holding to apply the special deduction for long-term holding should be aggregated only with the period of holding the assets under Article 94 (1) 1 of the Income Tax Act, so in cases where the period of holding has been destroyed or lost or changes in the period of using another deduction rate as an asset to be applied: Provided, That in cases where a member of reconstruction and redevelopment association acquires a new house based on an existing house and an association member's relocation right acquired an existing house and an association member's relocation right for one household under Article 159-2 of the Income Tax Act, the special deduction rate for long-term holding under Table 2 of Article 95 (2) of the Income Tax Act shall be applied by aggregating the period of holding the existing house and the association member's relocation right for one household (see Supreme Court Decision 2006Du16854, Jun. 14, 207).

2) The retention period of the part corresponding to the previous commercial building ratio among the instant housing

The plaintiff provided a rearrangement project association that implements a housing redevelopment project under the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, which was acquired before January 1, 1985, with the right to move into the housing of this case on March 24, 2005. The plaintiff acquired the housing of this case in accordance with the management and disposal plan approval on March 24, 2005. The fact that the plaintiff transferred the housing of this case, which is a high-priced house meeting the requirements for one house for one household to a third party on March 8, 2010,

Examining these facts in light of the aforementioned legal principles, the portion corresponding to the portion of the previous combined housing among the instant housing shall be deemed one house for one household, and the total period of the previous combined housing shall be applied to the special long-term holding deduction rate of one house for one household as stipulated in Table 2 of Article 95 (2) of the Income Tax Act. The portion corresponding to the portion of the previous combined housing among the instant housing shall be calculated by calculating the period of possession respectively from the portion of the commercial building of the previous combined housing, and the special long-term holding deduction rate as stipulated in Table 1 and Table 2 of Article 95

3. Conclusion

Therefore, the claim of this case is dismissed as it is without merit, and since the judgment of the court of first instance which partially different conclusions is unfair, the part against the defendant in the judgment of the court of first instance shall be revoked and the plaintiff's claim corresponding to the above revoked part shall be dismissed as per Disposition.