early 2010 Heavy015 (2010.03.08)

One house for one household shall not meet the requirements for non-taxation;

Whether the requirements for non-taxation for one household are satisfied is determined on the basis of objective facts, not on the basis of the taxpayer’s subjective perception. Therefore, even if the Plaintiff was unaware of the spouse’s acquisition of shares in housing, it was erroneous that the Plaintiff deemed that the Plaintiff was a house owned by the spouse, and that the requirements for non-taxation for

2010Gudan846 Revocation of Disposition of Imposing capital gains tax

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〇〇세무서장

1. The plaintiff's claim is dismissed.

2. The plaintiff shall bear the litigation costs.

The Defendant’s disposition of imposition of capital gains tax of KRW 55,729,270 against the Plaintiff on November 12, 2009 shall be revoked.

1. Circumstances of dispositions;

A. On September 15, 1998, the Plaintiff acquired ○○○-dong 1886-5 ○○ apartment 103 403 dong (hereinafter the instant housing) and did not report the transfer income tax by transferring it on August 29, 2008.

B. The Defendant: (a) on March 5, 2003, the Plaintiff’s wife received 1/4 shares of 1/10 and 110-4 shares of the △△△△ apartment, 307 △△△-dong, 110-dong 1305; and (b) on November 12, 2009, the Plaintiff determined and notified the Plaintiff of KRW 5,729,270 as transfer income tax for the year 2008, deeming that the Plaintiff fell under the owner of two houses at the time

[Ground of recognition] Facts that there is no dispute, Eul evidence No. 1

2. The plaintiff's assertion

A. The Plaintiff’s share in the above △ apartment that was donated to the Plaintiff’s wife is inherited in advance from his father to other inheritors in accordance with their inheritance shares.

Article 155 (3) of the Enforcement Decree of the Income Tax Act provides that with respect to "one house for one household as prescribed by the Presidential Decree" in Article 89 (1) 3 of the same Act, where Article 155 (3) of the Enforcement Decree of the same Act transfers a house other than the house jointly inherited, the house jointly inherited shall not be deemed the house of the relevant resident. The above △△ apartment shares of thisA also fall under the house substantially shared inherited and excluded from the house owned at the time of the transfer by the Plaintiff, and therefore, the requirements

B. The Plaintiff did not know that the Plaintiff acquired shares in △△ apartment as above and did not know of the acquisition. The instant disposition against the Plaintiff, known as falling under one house for one household, was unlawful.

3. Determination

In the meantime, Article 89(1) of the Income Tax Act provides that the income derived from the transfer of one house for one household as prescribed by the Presidential Decree shall be non-taxable income. In light of the principle of no taxation without the law, the interpretation of tax laws and regulations shall be interpreted in accordance with the legal text unless there are special circumstances, and it shall not be permitted to expand or analogically interpret without the reasonable reason, and in particular, it is consistent with the principle of fair taxation to strictly interpret the provisions that can be seen as clearly preferential provisions among the requirements for reduction and exemption.

Article 155 (3) of the Enforcement Decree of the Income Tax Act provides only joint inherited houses and provides several houses, it may not be extended and interpreted to include them.

In addition, the issue of whether the requirements for non-taxation for one household are satisfied is determined on the basis of objective facts, not based on the subjective perception of the taxpayer. Therefore, even if the Plaintiff was unaware of the spouse’s acquisition of shares in housing, it did not err by deeming that the requirements for non-taxation for one household were not satisfied.

Therefore, there is no error in the taxation disposition of this case as alleged by the plaintiff.

4. Conclusion

The plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.