Seocho 2013west 1443 (Law No. 23, 2013)

The defendant's disposition that deemed the instant officetel as a house does not constitute "one house for one household" is unlawful.

The instant officetel is a building in which the structure, function, or facility allows accommodation in a partial subdivision as its original business purpose, unless it is proved that the plaintiff or his family actually used for an independent residential life for a long time, it cannot be viewed as a "house for one household" in determining the requirements of "house for one household" unless it is proven that the plaintiff or his family actually used it

2013Gudan5249 Revocation of Disposition of Imposing capital gains tax, etc.

NewA

Head of Yeongdeungpo Tax Office

May 21, 2014

June 18, 2014

1. The Defendant’s disposition of imposing capital gains tax of KRW 000 (including additional tax) for the year 201 that reverts to the Plaintiff on September 3, 2012 shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

Cheong-gu Office

The disposition date of the written complaint is the same as the order (the date of disposition in the written complaint seems to be a clerical error).

1. Details of the disposition;

A. On May 22, 1995, the Plaintiff acquired the transfer house of 00 - 00 - 00 - 00 - 90-84 - multi-household housing No. 1 - 000 - 54.37 m2 (hereinafter “instant transfer house”) and on July 28, 2005, Seoul 00 - 00 - 77-10 - 000 - 00 - 000 - 14 - 96.68 m2 (hereinafter “the instant officetel”).

B. On July 1, 2011, the Plaintiff transferred the instant transferred house to KRW 000, but did not make a return on the capital gains tax on one household as a single house subject to non-taxation.

C. On September 3, 2012, the Defendant imposed capital gains tax of 000 won on the Plaintiff, deeming that the two houses per household are not exempt from taxation (hereinafter “instant disposition”).

[Ground of recognition] Unsatisfy, Gap 1, 5, 13

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The Plaintiff and his family members resided in the instant transfer house and moved to the instant officetel on June 30, 201. On the resident registration, the Plaintiff and his family members moved to the instant officetel on March 29, 2005, and their family members on February 28, 2011. However, in order for the Plaintiff to act as the occupant representative of the instant officetel, and their families move to the same for their children to move to the new school year as the second grade of the instant officetel.

2) The Plaintiff entered into a sales contract on March 1, 2003 for the purpose of leasing the instant officetel as an office, and completed the business registration as the rental business on March 10, 2003. After the completion of the instant officetel on July 28, 2005, the instant officetel was acquired on July 28, 2005, but disputes, such as noise and the infringement of the right to sunshine, etc. due to the surrounding apartment construction, have occurred due to the bad environment, and the Plaintiff was at a disadvantage for six years without seeking the lessee. The Plaintiff transferred the resident registration to participate in the lawsuit as the representative of occupants during the dispute process.

3) The instant officetel was sold in lots from the time of sale to the “business facilities (officetel)”, and the Plaintiff was actually sold in lots to rent it to the office, and the instant officetel was not residing at any time before June 30, 201. Therefore, the instant officetel cannot be deemed a house until June 30, 201, and the transfer income tax cannot be imposed as one house for the instant transferred house pursuant to relevant statutes.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) In full view of the aforementioned evidence, the following facts can be acknowledged in light of the overall purport of Gap evidence Nos. 6 to 12, Eul evidence Nos. 1 to 18, and the whole arguments.

A) On May 22, 1995, the Plaintiff entered into a sales contract with the instant officetel on March 1, 2003 while acquiring the instant transferred house, and completed the business registration on March 10, 2003 as real estate rental business. On March 29, 2005, the Plaintiff transferred the instant officetel’s resident registration to the instant officetel, and acquired the registration of transfer of ownership on July 28, 2005.

B) Around 2004, the construction of an apartment building for prosecution staff was determined in the vicinity of the instant officetel building, and the dispute arose between the prospective occupants of the instant officetel building and the prospective occupants of the instant officetel on the grounds of noise and infringement of sunshine rights. The Plaintiff participated in the said lawsuit as an occupant representative of the instant officetel building.

C) The Plaintiff’s family members transferred resident registration to the instant officetel on February 28, 2011, and transferred the instant transferred house, which had been previously residing, to the instant officetel through the director company on June 30, 201, transported the instant instant officetel to the instant officetel, such as bed, book, and book, and thereafter reside in the instant officetel.

D) Meanwhile, the head of the Gu, from 2006 to 2011, imposed property tax on the instant officetel as a residence (residential) on the Plaintiff. As of 2011, the head of the Gu imposed property tax on the instant officetel from 2006 to 201, to 139 households among the total number of 156 households of the instant officetel buildings, and to 17 households, property tax was imposed on the instant officetel for business purposes. The monthly gas rate of the instant officetel from 2006 to 2011 is distributed from annual average of KRW 00 to KRW 00, and the highest price is distributed from KRW 00 to KRW 00.

2) According to the relevant laws and regulations, “house” refers to all or part of a building with a structure in which members of a household can carry on an independent residential life for a long time as well as land annexed thereto, which is divided into detached houses and multi-unit houses (Article 2 Subparag. 1 of the Housing Act), and “officetel” refers to “a building which mainly carries on business and satisfies the criteria as publicly notified by the Minister of Land, Infrastructure and Transport, which allows them to board and board in some sections of the subdivisions sold in lots or leased,” which belongs to “business facilities classified into detached houses and multi-unit houses” (Article 2(2) of the Building Act and attached Table 1).

Meanwhile, in a case where a transferor of a house owns another building, the issue of whether the other building constitutes "one house for one household" under the Income Tax Act shall be determined by whether the actual purpose of use is a building actually used for a residence regardless of the usage classification of the injury to the building. Even if the building is used for a non-residential purpose, the structure, function, or facility is in a state suitable for a residence as its original residential purpose, and the residential function is maintained and managed as it is, so that the building can be used for a house by himself or a third party at any time (see Supreme Court Decision 2004Du14960, Apr. 28, 2005). However, if the building, function, or facility is suitable for the original use for a business purpose, and there is a facility that can board and lodge in a part of a building, it cannot be viewed as a house unless there are special circumstances, such as, in fact, that a member of the household has carried on an independent residential life for a long time, by diverting it for a residential purpose.

In light of the following facts: (a) the instant officetel was newly constructed as an officetel classified as “business facilities” under relevant Acts and subordinate statutes; (b) the instant officetel was constructed and approved for use pursuant to the “office construction standards” under the relevant Acts and subordinate statutes at the time; (c) the Plaintiff also transferred his/her resident registration to the instant officetel on March 29, 2005; (d) although the Plaintiff transferred his/her residence to the instant officetel on March 29, 2005, it was sufficiently recognized that the Plaintiff’s approval for use of the instant officetel was previously made; (c) the instant officetel was used as an apartment building for residence at the time of sale; and (d) most households were actually used for residence; (d) the instant officetel building was used as an apartment building for residence at the time of sale; and (e) there were still many households on which property tax was imposed; and (e) the usage of the instant officetel, such as the name or gas claimed by the Defendant, is insufficient to recognize that the instant officetel had actually carried on residential life from the instant officetel for a long period of time.

3) Therefore, the Defendant’s disposition that deemed the instant officetel as a house and that the instant instant transfer house does not constitute “one house for one household” is unlawful.

3. Conclusion

Ultimately, the plaintiff's claim of this case is reasonable, and it is so decided as per Disposition.