Whether one house for one household meets the requirements for non-taxation, and whether to recognize necessary expenses

Since the housing holding period is less than one year, one house requirement per household is not satisfied, and the written estimate of construction expenses is insufficient to recognize it as necessary expenses due to capital expenditure.

Article 89 (Non-Taxable Transfer Income Tax)

Article 95 (Transfer Income Amount)

1. The claim for cancellation of the portion exceeding KRW 17,873,950 among the instant lawsuit is dismissed.

2. The plaintiff's remaining claims are dismissed.

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

The Defendant’s disposition of imposition of capital gains tax of KRW 22,113,130 for the Plaintiff on March 2, 2007 shall be revoked.

1. Details of the disposition;

A. The Plaintiff transferred ○○○-dong, Incheon, ○○○-dong ○○-126 ○ apartment 210 dong 907 (hereinafter “the instant apartment”) from the instant apartment on February 27, 2002 after completing the registration of ownership transfer on April 10, 201 due to the sale on March 3, 2001 and completing the move-in report on March 9, 2001 and completing the move-in report on January 23, 2002.

B. On January 23, 2002, the Plaintiff reported the transfer income tax of KRW 89,500,000 with the acquisition value of the instant apartment, transfer value of KRW 91,00,000, and transfer margin of KRW 1,50,000.

C. The Defendant confirmed that the actual transfer value of the apartment of this case is KRW 128,00,000, and issued a disposition imposing capital gains tax of KRW 22,113,130 on the Plaintiff on March 2, 2007 by calculating capital gains from the actual transaction value, since the period of possession of the apartment of this case is less than one year (hereinafter “the initial disposition of this case”).

라. 원고는 위 부과처분에 불복하여 2007. 5. 30. 피고에게 이의신청을 하였으나, 피고는 2007. 6. 18. 원고의 이의신청을 기각하였다. 한편 피고는 2007. 6. 7. 당초 필요경비로 인정한 취, 등록세 1,500,000원에 추가로 취, 등록세 1,300,000원과 자본적지출에 해당하는 샷시공사비등 4,300,000원을 필요경비로 인정하여 이 사건 당초 부과처분을 18,516,230원으로 감액경정하였다.

E. The Plaintiff requested the Commissioner of the National Tax Service on September 13, 2007, and the Commissioner of the National Tax Service partially accepted the request on November 26, 2007, and decided to revise the transfer income tax including KRW 1,000,000,000 paid by the Plaintiff as necessary expenses.

F. In accordance with the purport of the above decision, the defendant recognized the brokerage commission of November 26, 2007 as necessary expenses and made a decision of correction that reduces capital gains tax of 17,873,950 won (hereinafter referred to as the "disposition of this case") as 17,873,950 won (hereinafter referred to as the "disposition of imposition of capital gains tax as of March 2, 2007, when the tax amount was reduced by the above decision of correction)

[Ground of recognition] Facts without dispute, Gap 1 to 3 evidence, Eul 1 to 5 evidence, the purport of the whole pleadings

2. Whether the revocation of the capital gains tax exceeding 17,873,950 won is legitimate.

As seen earlier, the part exceeding KRW 17,873,950 among the instant disposition against the Plaintiff on March 2, 2007, which was rendered by the Defendant against the Plaintiff, is extinguished by the Defendant’s disposition of reduction or correction as of November 26, 2007, and thus, seeking revocation on this part is unlawful as there is no benefit of lawsuit.

Therefore, the plaintiff's lawsuit on this part is dismissed as unlawful.

3. Whether the instant disposition is lawful

A. The plaintiff's assertion

The plaintiff asserts that the disposition of this case should be revoked in an unlawful manner on the following grounds.

(1) The plaintiff transferred to the apartment of this case on February 25, 2001 and transferred on February 27, 2002 the period of possession is not less than one year, and it transferred it to the plaintiff's husband's business failure, many debts, etc. and due to inevitable and inevitable reasons, which constitute a non-taxation requirement of capital gains tax.

(2) After acquiring the apartment of this case, the Plaintiff disbursed KRW 10,400,00 for the interior construction cost, KRW 12,500,000 for the repair cost, and KRW 22,90,000 for the total of KRW 12,50,000 for the repair cost. Among them, KRW 4,30,000 for the apartment of this case was recognized as necessary expenses but the remainder of KRW 19,50,000 for the construction cost should be deducted from capital gains, but the disposition of this case was unlawful on a different premise.

(b) Related statutes;

Article 89 (Non-Taxable Transfer Income Tax)

Article 95 (Transfer Income Amount)

Article 96 (Transfer Price)

Article 97 (Calculation of Necessary Expenses for Transfer Income Tax)

Article 98 (Time of Transfer or Acquisition)

Article 154 (Scope of “One House for One Household”)

Article 162 (Time of Transfer or Acquisition)

Article 163 (Necessary Expenses for Transferred Assets)

C. Determination

(1) Whether the Plaintiff owned the instant apartment for at least one year

According to Article 89 (1) 3 of the former Income Tax Act, Article 154 of the former Enforcement Decree of the Income Tax Act, and Article 71 (3) of the former Enforcement Rule of the Income Tax Act, one house for one household prescribed by the Presidential Decree shall be the case where one house is held in Korea as of the date of transfer and has resided in Korea for more than one year, and is transferred due to school attendance, circumstances in work, medical treatment of diseases, and other unavoidable reasons. According to Article 162 (1) of the former Enforcement Decree of the Income Tax Act, the time of acquisition and transfer of assets shall be the date of liquidation of the price of the assets, but if the price is not clear or before the price is settled, the registration date recorded in the register shall be the date of receipt. According to the above evidence, the fact that the date of receipt of the registration of transfer of ownership in the name of this case is January 23, 202 can be recognized. Thus, even if based on the above facts, the period of acquisition of apartment houses claimed by the plaintiff is less than one year, and thus the plaintiff's assertion as to be without merit.

(2) As to the test cost and repair cost

The plaintiff's assertion is insufficient to recognize that each of the above costs alleged by the plaintiff is necessary expenses due to capital expenditure, only based on the quotations in the name of the consignor, Kim ○-type, submitted by the plaintiff, and written estimates in the name of the defendant Kim ○-type. This part of the plaintiff's assertion

4. Conclusion

Therefore, the claim for cancellation of the capital gains tax exceeding KRW 17,873,950 among the lawsuit of this case is dismissed as it is unlawful, and the remaining claims are dismissed as it is without merit. It is so decided as per Disposition.