The instant officetel constitutes a house and thus does not meet the requirements for non-taxation for one household.

The issue of whether the instant officetel is a house shall be determined according to its actual use, regardless of the classification of use in the public record of the building.

Article 88 of the Income Tax Act

2018Gudan21821 Revocation of Disposition of Imposing capital gains tax

○ ○

○ Head of tax office

on October 20, 2019

on October 24, 2019

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposition of KRW 28,052,440 on the Plaintiff on October 20, 200 is revoked.

1. Details of the disposition;

A. The Plaintiff acquired the ownership of three real estate in sequential order as indicated below (hereinafter “the Plaintiff”).

Each of the above immovables shall be indicated as indicated in the abbreviations below.

B. On September 6, 2017, the Plaintiff transferred the first house of KRW 379 million (hereinafter “instant transfer”) to the Defendant on September 25, 2017, and on September 25, 2017, the Plaintiff made a preliminary return to the effect that the transfer income tax for the transfer of this case falls under the requirements for non-taxation of one house for one household, and that the transfer income tax for the year 2017 reverts to zero won.

C. However, the Defendant determined that the instant officetel is used as a house, and the Plaintiff owned three houses as well as 1 and 2 houses at the time of the instant transfer, and thus, the Plaintiff’s transfer income generated from the instant transfer was amended by Act No. 14569, Feb. 8, 2017; hereinafter the same shall apply) Article 89(1)3 of the former Income Tax Act (amended by Act No. 14569, Feb. 9, 2018).

Article 154(1) and (11), and Article 155(1) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 28293, Sep. 19, 2017; hereinafter the same shall apply) (hereinafter referred to as “Special Provisions on Non-Taxation on Two Houses for One Household”) determined that the Plaintiff’s content is not eligible for non-taxation. Accordingly, the Defendant denied the Plaintiff’s content, and decided and notified KRW 28,052,440 to the Plaintiff on August 1, 2018 (hereinafter referred to as “instant disposition”).

D. The Plaintiff appealed and filed an appeal with the Tax Tribunal on August 8, 2018, but on January 1, 2018.

6. An appeal was dismissed.

Facts without dispute over the basis of recognition, Gap evidence 1, 6, 7, Eul evidence 1 to 7, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. Summary of the plaintiff's assertion

The first and second houses are housing, but the instant officetels do not fall under housing. The purpose of the instant officetel’s public register is not housing, and acquisition tax and property tax have been imposed on this premise. The Income Tax Act provides housing and officetels as separate assets. In light of the following circumstances: (a) the instant officetels asserted that it falls under housing; (b) the Defendant presented the move-in report and business registration; and (c) the phrases written in the lease contract, etc., by asserting that the instant officetels falls under housing; and (d) the Defendant did not directly investigate whether the instant officetels was actually used; and (c) the Defendant did not submit any supporting objective data.

Therefore, the Plaintiff owned the first house as a house and acquired the second house as a substitute house before transferring it, so the special case of non-taxation on the transfer of this case should be applied.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

The key issue of the instant case is whether the instant officetel constitutes a house.

(1) In a case where a person who transfers a house owns another building, whether the other building constitutes “house”, and whether the other building constitutes “house” is actually used for residence regardless of the classification of the official injury to the building.

use for non-residential purposes as a temporary

Even if the structure, function, or facility is the original residential purpose, and is suitable for the residential purpose;

I or a third party at any time because the dwelling function is in a state and is maintained and managed as it is;

In the case of a building that can be used as a house, it shall be deemed as a house (see, e.g., Supreme Court Decisions 2004Du14960, Apr. 28, 2005; 2005Du4304, Oct. 26, 2006). In addition, non-taxation is a specific object among the objects subject to general taxation, in the need of tax policy.

It is excluded from taxable objects, and it is related to the exceptional and special facts on the taxpayer's side, so the burden of proof for the requirements for non-taxation, non-taxation, and exemption is against the taxpayer who asserts the grounds for reduction (see, e.g., Supreme Court Decision 98Du16095, Jul. 7, 200).

2) The entire pleadings in each entry of Gap evidence Nos. 1, 2, 3, 8, Eul evidence Nos. 2, 11, 12, 13, and 17 through 21

In light of the following facts and circumstances acknowledged in full view of the purport of this case:

Officetel appears to fall under housing prescribed in the Income Tax Act and only the evidence submitted by the Plaintiff.

of this case, it is not reasonable to view that the instant officetel constitutes a non-housing business facility, and month.

there is no evidence to prove this.

① The Plaintiff did not have registered the business of leasing real estate until the transfer date of the instant officetel after acquiring the instant officetel, and the details of the registration of the business or the report of the value-added tax on the instant officetel do not exist.

② There was no circumstance suggesting that the Plaintiff filed a move-in report on the resident registration from the time the instant officetel was acquired to the time of transfer, and that the lessee had intended to use the instant officetel for business purposes.

③ In particular, on February 17, 2017, the Plaintiff and the lessee who entered into a lease contract on the instant officetel and completed a move-in report on the same day are identified as an employee who is not a business entity. In addition, the term “residential” is stipulated in the indication column of real estate in the lease contract made between the Plaintiff and the said lessee, and the terms and conditions that the lessor installs “abundage, laundry, laundry, and air conditioners” should be applied to the Housing Lease Protection Act.

④ Although the public register of the instant officetel is a business facility, the instant officetel has a studio type capable of independent dwelling because it has toilets, kitchens, kitchens, heating systems, etc. inside the instant officetels, and the instant officetels also have the same type of studio type as the instant officetels.

In light of the fact that the same type of officetels in water is advertised as a studio-type officetel, it seems that the instant officetel is actually being used for residential purposes.

3) Therefore, the instant officetel is a residential house under the Income Tax Act, and its use is not clear as asserted by the Plaintiff. Furthermore, the transfer income tax is separate from the acquisition tax and local tax imposed by a local government, which is a national tax imposed by the taxpayer’s reporting method, based on the provisions of the Income Tax Act. As asserted by the Plaintiff, the mere fact that the acquisition tax and local tax imposed on the instant officetel was paid for use other than a house cannot be deemed to be unlawful against the principle of fair taxation by the Defendant, the subject of the imposition of national taxes

4) Ultimately, the Plaintiff owned three houses for the first and second houses and the instant officetels at the time of the instant transfer. Thus, the instant disposition denying the special provisions on temporary non-taxation of two houses is lawful.

3. Conclusion

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