The propriety of a disposition imposing capital gains tax on a combined house by deeming that the area other than the house is larger than the area of the house

It is difficult to recognize that each fifth level of the world among the commercial areas submitted by the Plaintiff was used as a residence for the purpose of residence, or that the structure, function, facilities, etc. of the building are in a state suitable for residence as the original residential area and the residential function is maintained and managed as it is.

2015Gudan3633 Revocation of Disposition of Levying Transfer Income Tax

○ Kim

○ Head of tax office

July 15, 2016

August 26, 2016

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

On June 23, 2014, the Defendant revoked the imposition of capital gains tax of KRW 00 (including additional tax) on the Plaintiff for the year 2013.

1. Details of the disposition;

A. On August 30, 2013, the Plaintiff acquired on September 15, 1987, transferred to another person the land of Songpa-gu Seoul Songpa-dong 209-11 and the underground first floor and fourth floor above the ground (hereinafter “instant real estate”) on the land, and reported transfer income tax on October 31, 2013, deeming that the residential area of the instant real estate is larger than that of the commercial area, and thus, the Plaintiff’s transfer income tax was reported accordingly.

B. On January 2014, the Defendant issued the instant disposition to correct and notify the Plaintiff of the portion exceeding KRW 900 million out of the transfer value as to the portion exceeding KRW 445.16 square meters in the commercial area of the instant real estate at the time of transfer, KRW 396.16 square meters in the residential area, and KRW 46.8 square meters in the common area, and KRW 46.8 square meters in the commercial area in the commercial area of the instant real estate on June 23, 2014.

C. The Plaintiff appealed and filed a tax appeal on September 22, 2014, but was dismissed on August 3, 2015.

[Reasons for Recognition] Evidence No. 1, Evidence No. 2-2, and the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The level of five square meters on each of the first and third floors underground of the real estate of this case was used as a residence for the purpose of residence by commercial tenants, and it was unlawful to recognize the disposition of this case, even though the housing area of the real estate of this case is larger than the commercial area if it is added to the housing area except from the commercial area.

B. Determination

According to the overall purport of the entry and pleading of the evidence Nos. 2 and 3 as to the instant evidence Nos. 2 and 3, the instant real estate was used as a singing practice room as a neighborhood living facility (sing practice room) with 123.82 square meters and 46.80 square meters as a boiler room at the time of transfer. The instant real estate was used as a singing practice room with 123.82 square meters and as a boiler room with 46.80 square meters on the ground of 149.02 square meters on the ground of 3rd floors as a neighborhood living facility (public notice place) and the remaining part, excluding the part used as a house, which is 49.67 square meters, which is a commercial building.

The statement of No. 3 submitted by the Plaintiff alone is difficult to recognize that the fifth degree of each of the five square meters among the singing practice room of the first floor and the third floor are used as a residence for the purpose of residence, or that the structure, function, facilities, etc. of the building are in a state suitable for residence as its original residential purpose and are maintained and managed as they are. There is no other evidence to recognize otherwise. Even if a part of the commercial building is not used as a permanent residential purpose, but for a residential purpose, it is reasonable to view it as a commercial building if it is used as a residential purpose or a place of business for the purpose of business.

3. Conclusion

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