National Trial 1997bu0316 ( December 31, 1997)

Transfer

Dismissal

At the time of the claimant's transfer of the key apartment, the claimant's household owned three houses. Therefore, the key apartment does not constitute one house for one household which is exempt from capital gains tax.

Article 5 of the Income Tax Act / Scope of one house for one household under Article 15 of the Enforcement Decree of the Income Tax Act

I dismiss the appeal.

1. Summary of disposition;

The claimant acquired 85.4.9, the claimant acquired OOOOOOOOOOOO (the site ownership of 59.04 square meters and the building of 1096.87 square meters and hereinafter referred to as the "share apartment") from Gangnam-gu Seoul Metropolitan Government OOOOOOOOOOOOO(the site ownership of 59.04 square meters and the building of 1096.87 square meters) and acquired 175 square meters of the OOOOO building of the Busan Metropolitan City, the 88.132.40 square meters, and the 90.4 square meters of the 29.4 square meters of the 290.4 square meters of the OOOOOOOOOOOOO, Busan Metropolitan City OOOOOOOOOOOOOO (the site ownership of the apartment and other apartment at the time of the transfer of the apartment.

On the other hand, the disposition agency decided and notified the 11,729,080 won and the 2,345,800 won of the 90-year transfer income tax for the claimant and the 2,345,800 won of the 90-year transfer income tax for the 90-year transfer income tax.

The claimant appealed against this and filed an appeal on July 5, 96 and September 30, 96.1.22.

2. The claimant's assertion and opinions of the Commissioner of the National Tax Service;

(a) Claimant;

The inheritance house is a house registered in the public register, but it is not used as a house as a old warehouse attached to the bath, and it has been removed in March 89 and used as a parking lot until now. The claimant has transferred the apartment house for at least five years and satisfies the requirements for non-taxation of one house for one household, so the disposition of this transfer income tax by the disposition agency should be revoked.

(b) Opinions of the Commissioner of National Tax Service;

Although the claimant has a key apartment for not less than five years, it is recognized that the inheritance house is a house in its public record, and the house has not been destroyed or disposed of until the date of the request for examination on the house ledger. If the inheritance house has been destroyed or lost on March 5, 89, it is difficult to view that the inheritance house has been destroyed or lost 89.3.5 because the registration office did not have any reason to register the inheritance house on August 4, 92, because it is difficult to view that the inheritance house has been destroyed or lost. Therefore, the disposition of imposing the transfer income tax on the

3. Hearing and determination

A. Key issue

The main issue is whether the apartment is one house for one household which is exempt from capital gains tax.

(b) Related statutes;

Article 5 of the Income Tax Act provides that no income tax shall be imposed on the income falling under any of the following subparagraphs, and subparagraph 6 (i) thereof provides that “one house for one household as prescribed by the Presidential Decree” and the incidental land within the area calculated by multiplying the area of the land on which the building is built by the ratio as determined by the Presidential Decree by region; and

In Article 15 (1) of the Enforcement Decree of the same Act, the term “one house for one household” in Article 5 (6) (i) of the same Act shall mean that a household comprised by a resident and his spouse together with the family members who make their living at the same address or same place of residence, owns one house in Korea and reside for three or more years: Provided, That in case falling under any one of the following subparagraphs, the period of his residence shall not be restricted:

2. Where the resident proves that he is one house for one household prescribed by Ordinance of the Ministry of Finance and Economy, the holding period of which is not less than five years.

Article 6 (1) of the Enforcement Rule of the same Act provides that Article 5 (6) (i) of the same Act shall apply to the income accruing from the transfer of the previous house within six months from the date of acquiring another house if a household having one house in Korea acquires another house before transferring the apartment house for the purpose of moving the house.

On the other hand, Article 15 (6) of the Enforcement Decree of the Income Tax Act provides that where a person falling under paragraph (1) acquires a house by inheritance, the first transferred house shall be considered as one house for one household.

C. Hearing and determination

(1) Since the claimant acquired another apartment located in Busan Metropolitan City before transferring the key apartment, he/she would own two houses, but he/she would transfer another apartment within six months from the date of acquisition of the other apartment, and the household of the claimant was residing in another apartment, and if the claimant did not own any other apartment, the income accrued from the transfer of the key apartment under Article 5 subparagraph 6 (i) of the Income Tax Act and Article 6 (1) of the Enforcement Rule of the same Act shall be exempted.

However, as seen in the above disposal outline, if the father of the claimant's wife was succeeded to the inherited house as a share of 88.12.13, and the registration of the transfer thereof was made in his/her future, as the father's father's father's father was transferred to him/her, if the inherited house constitutes the house, the claimant's household at the time of transfer of the apartment at issue at the time of the claimant's transfer of the apartment, it is difficult to hold that the apartment constitutes one house for one household which is exempt from capital gains tax.

(2) According to the claimant's assertion that the building was actually destroyed at the time of the transfer of the apartment at issue, the claimant's assertion is difficult to recognize the claimant's assertion that the building was destroyed on the ground that the claimant submitted a separate certificate of taxation of local tax, which proves that no property tax was levied on the inherited building from 89 to 91, by proving his/her assertion. However, the claimant's assertion that the building was destroyed on the ground that there was no reason to impose property tax, such as

(3) In light of the fact that the use on the building ledger for inherited houses is a house at the time of the transfer of a 44.62 square meters, and that the 7-OO's heir, including the claimant, transferred the registration of transfer to each heir in the middle of 92.8.4.7 square meters, it is difficult to recognize the claimant's assertion that the above building was destroyed on March 5, 89 but did not organize the public account book. In addition, since there is no proof that the OOO of the claimant did not own the above building inherited, the claimant's household should have owned three houses at the time of the claimant's transfer of the apartment at issue, and the issue of apartment does not constitute one house for one household exempt from capital gains tax.

D. Conclusion

Since a request for a trial is recognized as groundless by the claimant, it shall be decided as ordered in accordance with Articles 81 and 65(1)2 of the Framework Act on National Taxes.