Cho High Court Decision 2010Du2265 (Law No. 24, 2010)

transfer of a house jointly inherited shall be subject to the transfer of two houses by one household;

When transferring a house other than a house jointly inherited, the house jointly inherited shall not be deemed the house of the relevant resident when transferring the house, and the house jointly inherited does not correspond to the transfer of the house itself other than the other house, so the transfer of the house jointly inherited shall correspond to two houses of one household.

2010Gudan2588 Revocation of Disposition of Imposing capital gains tax

XX Kim

O Head of tax office

June 10, 201

July 1, 2011

1. The plaintiff's claim is dismissed.

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

The Defendant’s rejection of an application for rectification of transfer income tax for the year 2008 against the Plaintiff on April 28, 2010

The cancellation shall be revoked.

1. Details of the disposition;

A. On January 3, 1981, the Plaintiff: (a) upon the husband’s death of Song-A, succeeded to, and owned jointly with other inheritors, the housing (hereinafter referred to as “instant housing”); (b) on April 30, 2008, the Plaintiff transferred the housing to Nonparty KimE and paid KRW 7,968,380, and 380 for the transfer income tax for the year 2008 equivalent to 30% of its own shares to the Defendant on June 30, 2008.

B. At the time of the transfer of the instant at issue housing, the Defendant provided a guidance to the effect that the Plaintiff owned 225 OO apartment Nos. 225, 114, 1203, 1203, and the Plaintiff constitutes two houses for one household. On May 31, 2009, the Plaintiff filed a final return on the instant at KRW 27,009,350, capital gains tax by applying the heavy tax rate of two houses for one household (50%) to the instant at issue housing, and the Defendant, on August 10, 2009, did not pay taxes to the Plaintiff, notified the Plaintiff of the resolution on the instant preliminary return tax return at KRW 27,576,550, plus the said preliminary return at KRW 567,20,00.

C. On March 8, 2010, the Plaintiff owned the instant housing pursuant to the former Enforcement Decree of the Income Tax Act.

The Plaintiff filed an application for correction of KRW 27,009,350 of the capital gains tax for the final return on April 28, 2010 to the effect that the burden of capital gains tax filed for the final return is unfair, not two houses for one household. However, on April 28, 2010, the Defendant made a disposition to refuse the application for correction because the Plaintiff’s report on heavy-income tax for two houses for one household is appropriate (hereinafter “instant refusal disposition”).

[Grounds for Recognition] Unsatisfy, W. Each entry in the evidence of Nos. 1 to 4 (including each number), before oral argument

The purpose of body

2. Whether the disposition is lawful;

A. The plaintiff's assertion

According to the provisions of Article 155(3) of the Enforcement Decree of the Income Tax Act prior to the amendment on February 22, 2008, the person who deemed the owner of the instant housing as the owner of the instant housing is the head Nam-B, the successor to the head of the family, and the person who deemed the owner of the instant housing pursuant to the provisions of Article 155(3) of the Enforcement Decree of the Income Tax Act after the amendment as the last one is the Plaintiff. However, the determination of the owner of the instant housing as the owner of the instant housing should be based on the commencement date of inheritance. Therefore, the person who deemed the owner of the instant housing as the owner of the instant housing as the owner of the instant housing is sentB, not the Plaintiff, pursuant to Article 155(

B. Determination

In applying Article 154(1) of the Enforcement Decree of the Income Tax Act, which the Plaintiff invoked, to the effect that Article 155(3) of the Enforcement Decree of the Income Tax Act provides for a special case of one house for one household which may be exempted from capital gains tax, and Article 155(3) of the Enforcement Decree of the same Decree provides that when a house other than a house jointly inherited is transferred, the house jointly inherited shall not be deemed a house of the relevant resident: Provided, That this provision does not apply to a heir who has the largest share in inheritance, and if there are not less than two heirs with the largest share in inheritance, the heir of the relevant house among such two or more persons, and the person corresponding thereto shall be deemed to own the house jointly inherited in the order of the oldest (in case of the amendment of February 22, 2008, the successor was the higher than the oldest).

Nevertheless, we cannot accept the Plaintiff’s assertion purporting that this case’s at issue, which is a joint inherited house, is not one of two houses for one household, based on the above provision prior to the amendment on February 22, 2008, in this case where the instant house, which is a joint inherited house, was transferred (the Plaintiff’s assertion is not different from each other, since the Plaintiff’s owner of the instant house, which is a joint inherited house, under the previous provision prior to the amendment, is deemed as BB, and thus, the Plaintiff did not have any reason to bear capital gains tax. Therefore, the above provision is not a provision that determines co-owners of both joint inherited houses, and thus, the Plaintiff’s assertion is lawful. The

3. Conclusion

Thus, the plaintiff's claim is dismissed as it is without merit.