Cho Jae-2017-China-2243 (2017.06)

Since there is no business registration for rental housing, it should be viewed as another house when determining one house for one household.

The requirements for rental housing not deemed another house for one household shall meet all the requirements for business registration and registration of rental housing business.

Article 154 of the Enforcement Decree of the Income Tax Act: Scope of One House for One Household

2018Guhap12560 Revocation of Disposition of Imposing capital gains tax

LAA

B The Director of the Tax Office

September 6, 2018

October 18, 2018

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The Defendant’s disposition of imposition of capital gains tax of KRW 89,750,843 against the Plaintiff on February 17, 2017 is revoked.

1. Details of the disposition;

A. On May 9, 198, the Plaintiff resided in the above house after completing the registration of ownership transfer due to the sale and purchase of a house with 00 - Dong, 000-73 - 188 - and 2 - above ground (hereinafter referred to as "real estate in this case by combining both land and housing") and completed the registration of ownership transfer due to the sale and purchase, and completed the registration of ownership transfer with the formerA on July 23, 2015, and completed the registration of ownership transfer with the formerA on September 14, 2015.

B. At the time of transfer of the instant real estate to JeonA, the Plaintiff owned a rental house (hereinafter “instant rental house”) as indicated below (the table).

C. On September 18, 2015, the Plaintiff reported that the instant rental house constitutes a long-term rental house under Article 89(1)3(a) of the former Income Tax Act (amended by Act No. 13558, Dec. 15, 2015; hereinafter the same shall apply) and Article 155(19)2 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 26600, Oct. 23, 2015; hereinafter the same shall apply) that there was no tax amount payable by applying non-taxation for one household at the time of filing a transfer income tax return on the instant real estate.

D. Accordingly, after examining the eligibility of the Plaintiff’s report of capital gains tax, the Defendant decided and notified the Plaintiff of KRW 138,850,39 of the capital gains tax for the year 2015, on February 17, 2017, on the ground that the instant rental housing does not constitute a long-term rental house under Article 155(19)2 of the former Enforcement Decree of the Income Tax Act because the Plaintiff failed to make business registration under Article 168 of the Income Tax Act (hereinafter “original disposition”).

E. Since then, the Defendant confirmed the omission of the special long-term holding deduction when calculating the tax base of capital gains tax, and corrected and refunded KRW 49,09,556 to the Plaintiff on March 7, 2017 (hereinafter “instant disposition”).

F. On April 2, 2017, the Plaintiff appealed to the Tax Tribunal for a trial on April 2, 2017, but the Tax Tribunal dismissed the claim on September 6, 2017.

[Ground of recognition] Facts without dispute, Gap evidence 1 through 6, Eul evidence 1 (including branch numbers, if any) and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

In around 2004, the Plaintiff registered as a rental business operator under the Rental Housing Act to the Seoul Metropolitan Government 00-Gu Office on the instant rental housing, and registered as a business operator under Article 168 of the Income Tax Act on the same day, so the instant rental housing constitutes a long-term rental house under Article 155(19)2 of the former Enforcement Decree of the Income Tax Act.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

1) In principle, the burden of proof of non-taxation requirements, exemption requirements, deduction requirements, etc. is imposed on a taxpayer in a lawsuit seeking revocation of a tax disposition, and the interpretation of tax laws is to be interpreted in accordance with the legal text, barring any special circumstances, by blocking the taxation requirements, non-taxation requirements, or tax exemption requirements, barring any special circumstance. It is not allowed to expand or analogically interpret the said provisions without reasonable grounds. In particular, it accords with the principle of equity in taxation to strictly interpret that the provisions that can be clearly viewed as preferential provisions among the tax exemption requirements accords (see, e.g., Supreme Court Decisions 2008Du7830, Oct. 23, 2008; 2003Du7392, May 28, 2004).

2) Therefore, it is difficult for the Plaintiff to find out the details of the above disposition 2 through 4 (including the number of the Plaintiff’s business registration) as well as the following circumstances, i.e., the registration of the rental house under Article 6 of the Rental Housing Act as the requirements for Article 155(19)2 of the former Enforcement Decree of the Income Tax Act, and there is no evidence to deem that the Plaintiff was issued a business registration certificate under Article 168 of the Income Tax Act or the business registration certificate under Article 168 of the former Enforcement Decree of the Income Tax Act, and rather, it is difficult for the Plaintiff to find that the Plaintiff applied for the registration of the rental house from 204 to 207 under the National Tax Service’s computerized civil petition receipt protocol (No. 204) because it is difficult for the Plaintiff to obtain the registration of the rental house from 104 to 207 because it is difficult for the Plaintiff to obtain the registration of the rental house from 200, the Plaintiff’s spouse who actually applied for the registration of the instant housing was issued the registration certificate.

3. Conclusion

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