In case where the previous house is transferred within one year from the time of acquiring another house, and the remaining price of another house has been already purchased on the date of receiving the remaining price, whether it constitutes one house for one household subject to non-taxation of capital gains tax

The provisions pertaining to the time of acquisition and time of transfer of assets under the Income Tax Act are merely a general provision for calculating gains from transfer under the tax law, and in specific cases are different in the acquisition and transfer of assets on the same day, and thus, in cases where the acquisition and transfer of assets are at issue after the preference of the time of acquisition and transfer, it shall be determined after the preference of the time of actual occurrence. Thus, it cannot be deemed that there was a situation in which another house has been transferred within one year from the time of acquisition of another house, and that another house has been already purchased on the same day after receiving the remaining price

Article 5 of the Income Tax Act, Article 15 of the Enforcement Decree of the same Act, Article 6 of the Enforcement Rule of the same Act

Kim Jong-sik

The Head of Seoul Central Government Tax Office

1. The Defendant’s imposition of KRW 7,428,100 and KRW 1,458,620 of the said defense tax against the Plaintiff on January 16, 1990 shall be revoked, respectively.

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

The same shall apply to the order.

1. On October 15, 1978, the plaintiff acquired and resided in a house located in Jung-dong 315-33 in Jungdong, Jung-gu, Seoul on June 25, 198 and acquired a new house of 195-2 of the above 195-2 of the above 195 for the purpose of moving the residence, and transferred the previous house on April 30, 1989 within one year from that time, and the defendant on January 16, 1990, against the plaintiff on January 16, 1990, the transfer difference between the transfer of the previous house constitutes two houses for one household as of the above transfer date, and was subject to a disposition of imposition of capital gains tax of 7,428,100 won and 1,458,620 won in total, 8,913,720 won in total as of the above transfer date, there is no dispute between the parties.

2. The plaintiff asserts that since the previous house was transferred within one year after acquiring the above house for the purpose of moving the residence, it constitutes one house for one household as stipulated in Article 5 subparagraph 6 (i) of the Income Tax Act and Article 15 of the Enforcement Decree of the same Act as of the date of the above transfer, and Article 6 of the Enforcement Rule of the same Act, and thus, the defendant who imposed the transfer income tax and the defense tax is illegal.

Therefore, we examine whether the Plaintiff is the owner of one house for one household as of the date of the transfer of the above Jungdong Housing, and on April 30, 1989 when the Plaintiff transferred the above Jungdong Housing, Nonparty 1, the wife of the Plaintiff on April 30, 1989, acquired the Plaintiff’s 25-dong apartment 25-dong 701, Dobong-gu, Seoul, Dobong-gu, Seoul, and the fact that the Plaintiff falls under the case of two houses for one household together with the above apartment house already acquired at the time of the instant taxation is the Plaintiff

However, in full view of the statements in Gap evidence 3-1, 2, and 4-1, 2, and 3 as to the transferred real estate of this case and the purport of testimony and pleadings, the plaintiff, on February 21, 1989, determined the purchase price as KRW 75,00,000 for the purchase price to be paid KRW 6,000 for the same day down payment, after being paid KRW 20,000 for the intermediate payment, KRW 49,000 for the sale and purchase price to be paid on March 23 of the same year, and KRW 49,000 for the remaining 9,40,000 for the above remaining 9,00 for the sale and purchase price to be paid on April 30 of the same year, and the remaining 9,000 for the above new apartment house under the name of the non-party 25,701,280,000,000 for the sale and purchase price to be paid on the same date.

In such a case, when calculating gains on transfer of assets under Article 27 of the Income Tax Act and Article 53 (1) of the Enforcement Decree of the Income Tax Act, the date of liquidation of the price of the relevant assets for the time of acquisition and time of transfer (if the date of liquidation is unclear, the date of the balance payment agreement entered in the sales contract) is stipulated as the time of acquisition and transfer, and further there is no specific provision as to the case where the acquisition and time of transfer are the same, the provisions on the time of acquisition and time of transfer of assets under the Income Tax Act are merely the general provisions for calculating gains on transfer under the Income Tax Act, and in concrete cases where the issue arises after the time of acquisition and time of transfer occur on the same date as the date of acquisition and transfer of assets under the tax law, the decision shall be made after the date of actual occurrence. Thus, in this case where the plaintiff paid purchase price for the said house only after receiving the sale price for the said house from the plaintiff, it cannot be deemed that the plaintiff had acquired the said apartment at the time of transfer of the said house.

4. Thus, at the time of the transfer of the above house, the plaintiff acquired another house for the purpose of moving the house and transferred the previous house within one year from the time of the transfer, and according to Article 15 subparagraph 1, Article 5 (i) of the Enforcement Decree of the Income Tax Act, Article 5 (1) of the same Act, and Article 6 subparagraph 1 of the Enforcement Rule of the above Enforcement Rule, the income from the above transfer shall not be subject to taxation. Thus, at the time of the transfer of the above house, the defendant's taxation in this case, which was based on the premise that the plaintiff had already been in a state of two houses of one household at the time of the transfer

Judges Lee Jong-dae (Presiding Judge)