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서울행정법원 2006. 09. 18. 선고 2005구단11206 판결
해외이주에 의한 1세대1주택 비과세 해당여부[국승]
Title

Whether one house for one household is exempt by emigration.

Summary

The Plaintiff was holding two houses at the time of moving to Canada, and thus, if the Plaintiff transfers one house in Korea in a non-resident status while all members of the household have left Korea due to foreign immigration, etc., the provision that it is exempt from taxation as one house for one household without limitation on the retention period is not applicable.

Related statutes

former Income Tax Act (amended by Act No. 7837 of Dec. 31, 2005)

Text

1. The plaintiff's claim is dismissed.

2. Litigation costs shall be borne by the plaintiff.

Reasons

1. Details of the disposition;

A. On March 20, 1989, the Plaintiff acquired ○○○-dong ○○○○-dong ○○○○○-dong ○○○○-dong 1208 (hereinafter “the apartment of this case”) and acquired ○○-dong ○○-dong ○○-dong 3 Dong 503 (hereinafter “tension-dong 503”) on August 17, 1993.

B. Around May 1989, the Plaintiff, an son, moved into the instant apartment around 198, and the Plaintiff, around April 1993, moved into the instant apartment with the △△△△△△△△△, another self-employed type, and the other self-employed, around April 1993.

C. On July 11, 1994, the Plaintiff, at the same time with the Do governor and the △△△△△△△, went to Canada. On November 14, 1997, the Plaintiff: (a) donated an air-conditioning apartment to the Do governor who had been in the Republic of Korea on November 14, 1997; and (b) the ownership transfer registration of the said apartment was completed on December 12, 1997; and (c) thereafter, the said Do governor moved to Canada on December 7, 1998.

D. Around April 2004, the Plaintiff, who was residing in Canada, entered into a sales contract to sell the instant apartment at KRW 570 million with the Jeju ○○○○, and on May 18, 2004, reported the acquisition price of the instant apartment to the Defendant at KRW 320 million and the transfer price at KRW 570 million. On June 9, 2004, the Jeju ○○○ paid the purchase price to the Plaintiff on June 9, 2004, pursuant to Article 156(1)3-2 of the Income Tax Act, withheld KRW 57 million and paid it to the Defendant. Meanwhile, at the time of the transfer of the instant apartment, ○○○○○○○ was designated as the area where the instant apartment was located as the area under Article 6(1)6 of the former Income Tax Act (amended by Act No. 7837, Dec. 31, 2005; hereinafter the same).

E. After that, on August 30, 2004, the Plaintiff filed a revised report with the Defendant on August 30, 2004, to the effect that the transfer of the instant apartment is subject to non-taxation as a transfer of one house for one household, and that the transfer of the instant apartment is subject to non-taxation (the revised report of the Framework Act on National Taxes was filed to increase the tax base, but the Plaintiff used the expression of the revised report when seeking refund of KRW 57 million.

F. However, the Defendant deemed that the non-taxation provisions of one house for one household apply only to residents, and that the transfer price of the apartment of this case, which is the basis for calculating the tax base, shall be based on the actual transaction price pursuant to Article 96 (1) 6-2 of the former Income Tax Act, so the acquisition price shall also be based on the actual transaction price. Thus, on the ground that the actual transaction price of the apartment of this case is not confirmed by the account book, sales contract, etc., the disposition was imposed upon Plaintiff 140,858,638 won [57,000,000 won (the actual transaction price at the time of transfer) X118,00,000 won (the standard market price at the time of acquisition), 47,50,000 won (the standard market price at the time of transfer), which is the conversion price under Article 176-2 (2) 2 of the former Enforcement Decree of the Income Tax Act, for the reason that the actual transaction price of the apartment of this case is not confirmed by the account book, sales price.

[Basis] Facts without dispute, Gap 1, Gap 2, Gap 3, Gap 6, Eul 1-1, Eul 1-2, Eul 3-1, Eul 3-2, Eul 3-3, Eul 7, Eul 9-1, and Eul 9-2's purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) Claim on the non-taxation of one house per household

The Plaintiff’s transfer of the instant apartment house in Canada, which had been residing differently from Y○○ and Canadian’s domicile, constitutes the transfer of the instant apartment house by one household. The Plaintiff’s transfer of the instant apartment house constitutes the transfer of one house by one household. The Plaintiff’s non-taxation provision on the transfer of the instant apartment by one household on the ground of “non-resident” is unlawful as it goes against the provisions of Article 154(1) of the former Enforcement Decree of the Income Tax Act, and is against Article 21(1) of the Convention between the Republic of Korea and Canada for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income between the Republic of Korea and Canada (hereinafter “the Convention between the Republic of Korea and Canada”), which provides that “the citizen of a Contracting State shall not impose any tax more severe than the tax imposed on the mother who is born or is to be borne by the same other Contracting State under the same circumstances.” Even if the non-taxation provision on the transfer of a house by one household is not applicable to a non-resident, and thus, the instant disposition is unlawful.

(2) Claim concerning acquisition value

The plaintiff purchased the apartment of this case in 320 million won through a real estate intermediary. Since the above acquisition value is reliable, the disposition of this case is unlawful since the acquisition value is calculated based on the conversion price stipulated in Article 176-2 (2) 2 of the former Enforcement Decree of the Income Tax Act for the reason that the actual transaction price at the time of acquisition cannot be confirmed. Even if the actual transaction price at the time of acquisition of the apartment of this case is not confirmed, the transfer margin following the transfer of this case should be calculated based on the standard market price, and thus, the disposition of this case is unlawful.

(b) Related statutes;

As shown in the attached Form.

C. Determination

(1) Determination shall be made on one house non-taxation for one household.

(A) Chapter 3 of the Income Tax Act provides that one house for one household as prescribed by the Presidential Decree under Article 89(1)3 and one house within a certain area of land attached thereto shall not be subject to the transfer income tax. Article 154(1) of the former Enforcement Decree of the Income Tax Act delegated by the Income Tax Act provides that "one house for one household shall have one house at the same address or same place of residence as the resident and his spouse together with the family members who make a living together with the same household at the same place of residence as of the date of transfer, and the period of holding the house concerned shall be three years or longer (in case of a house located in the area such as 00 city, the period of holding the house concerned shall be three years or more, and the period of holding the house concerned shall be two years or more, and Article 154(1) of the former Enforcement Rule of the Income Tax Act (amended by the Ordinance of the Ministry of Finance and Economy No. 2435, Mar. 14, 2005) shall not be subject to the restriction on the period of one house and the non-taxation.

As above, Article 89 (1) 3 of the Income Tax Act provides that "one house for one household which is exempt from capital gains tax shall be comprehensively delegated to the Presidential Decree to set the definition and scope of one house for one household which is exempt from capital gains tax." Article 154 (1) of the former Enforcement Decree of the Income Tax Act provides that "resident with respect to the scope of one household" as to the scope of one household, the owner of one house for one household shall be the resident at the time of transfer of the house. In addition, Article 154 (1) 2 (c) of the former Enforcement Decree of the Income Tax Act provides that where a resident transfers one house due to one's immigration, the period of holding one house and the period of residence, which are exempt from capital gains tax as provided in the main sentence of the same paragraph, shall not be subject to the restriction on the period of holding one house and the period of residence of the non-resident at the time of transfer of the house, and it shall not extend the requirements of application without any special reason, and thus, it shall not be deemed that the Plaintiff's provision or interpretation of tax exemption without any special reason.

(B) The Income Tax Act, regardless of nationality, distinguish between a resident and a nonresident depending on whether he/she has a domicile in Korea or a domicile in Korea for at least one year (Article 1(1) of the Income Tax Act), and even if a foreigner has a domicile in Korea for at least one year, it constitutes a resident if he/she has a domicile in a foreign country for at least one year, and even if he/she has a domicile in a foreign country, it constitutes a nonresident. However, it is based on whether the transferor is a national or a foreigner regardless of whether he/she is a national or a foreigner, and thus, it cannot be deemed as contrary to Article 21(1) of the Korea-Canadian Tax Treaty. The Plaintiff’s assertion on other premise is without merit.

(C) Under Article 89-12 of the General Rules of the Income Tax Act, the National Tax Service set the standard that "if a resident who only owns only one house in Korea departs from Korea and became a nonresident, he shall be exempted from taxation as one house for one household without any limit on the retention period," and has maintained the practice of exceptionally exempting capital gains tax only for a resident who owns only one house in Korea at the time of immigration, and thus, if a nonresident transfers a house in Korea, he shall be exempted from taxation only for cases falling under such non-taxation practice. As seen above, the Plaintiff had two houses, such as the apartment of this case and a tension apartment of this case, around July 11, 1994, at the time of moving to Canada, and thus, does not constitute a transferor subject to the above non-taxation practice. The Plaintiff’s assertion contrary thereto is without merit.

(2) As to the assertion regarding acquisition value

(A) We examine whether the actual acquisition value of the apartment of this case is 320 million won or more, and the sales contract (A10) submitted by the plaintiff as evidence is "non-permanent seller", but the buyer is "non-permanent seller", but the buyer does not have any indication as a broker, and only the contract deposit, intermediate payment, and the payment date and the amount thereof are stated in relation to the payment of the purchase price. Unlike the plaintiff's assertion that the apartment of this case was purchased as a real estate broker, the above sales contract does not have any indication as a broker in the above sales contract. The plaintiff's disposal of the apartment of this case is legitimate because the establishment registration of the right to lease on a deposit basis with 60 million won or more has been completed on July 13, 1987, it is difficult to confirm the actual transaction price at the time of the acquisition of the apartment of this case as the actual transaction price at the time of the acquisition of the right to lease on a deposit basis (Article 4-2 of the former Enforcement Decree of the Income Tax Act).

(B) At the time of the Plaintiff’s transfer of the instant apartment, ○○○○-si, where the instant apartment was located, designated as the so-called “the so-called “the so-called “the area” under Article 96(1)6-2 of the former Income Tax Act. As such, the transfer value of the instant apartment shall be based on the actual transaction value under the proviso of Article 96(1) of the former Income Tax Act, and where the transfer value is based on the actual transaction value under Article 100 of the former Income Tax Act, the transfer value should be calculated based on the actual transaction value, so the Plaintiff’s assertion that the transfer margin should be calculated on the basis

(3) Sub-decisions

Therefore, deeming that the transfer of apartment in this case does not constitute a non-taxation object following the transfer of one house for one household, the Defendant’s disposition in this case, which calculated the tax base by setting the transfer value of apartment in this case as KRW 570 million, which is the actual transaction value, as KRW 140,858,638, which is the conversion value under Article 176-2(2)2 of the former Enforcement Decree of the Income Tax Act, is lawful.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.

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