Cho-2017-B-2191 ( October 19, 2017)

One household's non-taxation special case is not applicable to the transfer of general housing because it fails to meet the requirements of return to farming.

Where the owner of farmland and the owner of a house of return to rural communities are the same household members, it shall be deemed that the requirements of the house of return to rural communities are satisfied, but since it cannot be deemed that all members of the household have transferred the general house after return to rural communities, the special case of non-taxation

Article 89 of the Income Tax Act: 155 of the Enforcement Decree of the Income Tax Act:

Gwangju District Court-2018-Guhap-43 (2018.30)

Category 00

00. Head of tax office

2018.07.05

2018.08.30

1. The plaintiff's claim is dismissed.

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

The rejection disposition taken by the defendant of the Gu office against the plaintiff on September 27, 2016 shall be revoked as to the transfer income tax of 22,849,159 won belonging to the year 2016.

1. Details of the disposition;

A. On May 24, 2013, the Plaintiff acquired 00 - 00 - 00 - 00 - 000 - 108 - 801 (hereinafter “the instant apartment”) but reported and paid capital gains tax of 22,840,159 that reverts to the year 2016 after transferring the apartment on February 29, 2016.

B. On July 29, 2016, the Plaintiff filed a request for correction on the premise that the exemption from taxation of one house per one household is applied to the Defendant on the ground that the Plaintiff’s spouse, her spouse, 000 Gunn 00 Gunn 00 Gunn 400 Gunn 400 Gunn 400-2 above (hereinafter “instant house”) constitutes the house of return to rural communities under Article 155(7)3 and (10) of the Enforcement Decree of the Income Tax Act (hereinafter “house of return to rural communities”).

C. However, on September 27, 2016, the Defendant rejected a request for correction based on Article 155(10)4 of the Enforcement Decree of the Income Tax Act (hereinafter “instant disposition”) on the ground that the Plaintiff’s farmland and housing owners are different, and do not meet the requirements for non-taxation of one household. D. The Plaintiff filed an objection with the director of the regional tax office on December 12, 2016, but was dismissed on January 11, 2017. On April 3, 2017, the Plaintiff filed a request for adjudication with the Tax Tribunal on April 19, 2017, but was dismissed on October 19, 2017.

[Ground of recognition] Facts without dispute, Gap evidence 1 to 3, 11, 12, Eul evidence 1, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The Plaintiff and the Plaintiff’s spouse constitute a special case of non-taxation on one house for one household by transferring the instant apartment house after having moved in the house of return to rural communities under Article 155(7)3 of the Enforcement Decree of the Income Tax Act. In light of the purport of the special case of non-taxation on one house for one household with respect to the house of return to rural communities, not only where the owner of the farmland and the house are the same, but also where the owner belongs to the same household, it shall be deemed that the requirements of the house of return to rural communities

2) The Plaintiff and the Plaintiff’s spouse were directors of the instant apartment before transferring the instant apartment, and thus, the instant apartment falls under the general housing that was first transferred after returning to rural communities, as prescribed in Article 155(11) of the Enforcement Decree of the Income Tax Act, and thus, the special housing tax exemption for one household is applicable.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Whether the owner of farmland and housing should be identical

The principle of no taxation without representation means that matters concerning the duty to pay taxes, such as tax requirements, must be prescribed by an Act enacted by the National Assembly, which is a representative body of the people, and that such Act should be strictly interpreted and applied even in the event of the enforcement of the Act, and that an extended interpretation or analogical application is not permitted. Therefore, it is against the principle of no taxation without representation to provide for matters concerning taxation requirements, etc. with an administrative legislation, such as an order or rule, without delegation of the Act, or to provide for an interpretation or expansion of the legal provisions without authorization (see, e.g., Supreme Court en banc Decision 2015Du45700, Apr. 20

Article 89(1)3 (b) of the Income Tax Act provides that "where one household does not impose income tax on capital gains, it shall substitute for another house before it transfers one house, or own two or more houses due to inheritance, living together, marriage, etc." Article 155 of the Enforcement Decree of the Income Tax Act provides that "Special Cases concerning non-taxation of one house for one household shall apply accordingly." Paragraph (7) 3 of the same Article provides that "where one household owns one house located in Eup or Myeon area in the Seoul Metropolitan area or one house in the Republic of Korea outside of the Seoul Metropolitan area and one house in the Republic of Korea outside of the Seoul Metropolitan area and another house, it shall be deemed that one house is owned in the Republic of Korea and shall not be subject to capital gains tax if it is transferred, and Article 155(10)3 of the Enforcement Decree of the Income Tax Act provides that "No. 1 of the Income Tax Act shall be deemed that the person who intends to engage in farming or fishing shall be exempt from taxation," and that "No. 1 of the same house shall be deemed as one house owner and one person who owns one house in the same manner:

Therefore, this part of the plaintiff's assertion is justified.

2) Article 155(11) of the Enforcement Decree of the Income Tax Act provides that Article 155(11) of the Plaintiff’s Enforcement Decree of the said Income Tax Act provides that where all members of a household are directors of a rural or fishing village due to return to farming, the special provisions on non-taxation for one household shall apply only

In full view of the following circumstances, comprehensively taking into account the evidence mentioned above, Gap evidence Nos. 5, 17, 19, 20, and Eul evidence Nos. 5, and the overall purport of the pleadings, since February 29, 2016, it can be recognized that the plaintiff did not reside in the house of return to the rural community from February 29, 2016, and thus, all members of the household under Article 155(11) of the Enforcement Decree of the Income Tax Act have first transferred the apartment of this case after the return to the rural community.

A) According to the Plaintiff’s certified copy of resident registration, the Plaintiff was transferred to the instant apartment on April 16, 2013, and was transferred to the Gu********** 140,103 Dong 804 on February 29, 2016, and the Plaintiff transferred his resident registration to the instant apartment on April 25, 2016. (B) On February 25, 2013, the Plaintiff moved to the instant apartment on February 25, 2013, and on February 29, 2016, did not have leased the instant apartment until the instant apartment was sold. Therefore, it is reasonable to deem that the Plaintiff was residing in the instant apartment.

C) According to the payment details of the electricity charges of the instant house of return to rural communities, in light of the fact that the Plaintiff paid remarkably less electricity charges of the instant house of return to rural communities from April 2015 to March 2016, and the payment details of the electricity charges of the instant house of return to rural communities again increase from April 2016, it is difficult to view that the Plaintiff was completely directored from the instant apartment house to the instant house of return to rural communities around that time.

3) Sub-determination

Ultimately, since the Plaintiff did not meet the requirements for special exemption from one house for one household, the instant disposition rejecting the Plaintiff’s disposition of capital gains tax rectification is lawful.

3. Conclusion

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