Case Number of the previous trial
early 209 middle 2590 ( October 31, 2010)
Title
Tax exemption for one house for one household by inheritance;
Summary
The provisions for non-taxation on one house for one household shall not apply where a person becomes two houses due to inheritance and transfers the general house, but where he/she becomes two houses by acquiring a house before the commencement of inheritance.
Text
1. The plaintiff's claim is dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
Purport of claim
The Defendant’s disposition of imposition of capital gains tax of KRW 16,020,80 against the Plaintiff on June 20, 2008 is revoked.
Reasons
1. Basic facts
A. On December 12, 1987, the Plaintiff purchased a single-story house of 35.32 square meters (hereinafter “instant building”) on the ground of AAAdong 313-2, Guri-si, and resided in the said building with the Plaintiff’s wife gamblingB from that point of time.
B. Meanwhile, on November 11, 1996, ParkB purchased a single-story house of 313-3 ground level adjacent to the building of this case, which was adjacent to the building of this case, but it was also residing in the building of this case with the Plaintiff even after the purchase.
C. Along with the death of ParkB on March 5, 2006, the Plaintiff acquired a single-story house on the ground of the above AAB 313-3 ground through an agreement and division of inherited property.
D. On August 27, 2007, the Plaintiff transferred the instant building to Hoho Lake, and on December 13, 2007, reported the transfer income tax on the ground that the instant building constitutes one house for one household as provided by Article 155(2) of the Income Tax Act and constitutes a non-taxation object.
E. On June 20, 2008, the Defendant rendered a decision of correction and notification of capital gains tax of KRW 16,020,80 for the year 2007 based on the judgment that the transfer of the instant building was not subject to non-taxation, and that it was not subject to non-taxation.
[Ground of recognition] Facts without dispute, Gap 1 to 4, Eul 1 to 3, purport of the whole pleadings
2. Whether the instant disposition is lawful
A. The plaintiff's principal
Since the Plaintiff acquired a building AA Dong 313-3 as a result of inheritance, the transfer of the building of this case ought to be determined as non-taxation subject to the first house of one household, so the disposition of this case is unlawful. Meanwhile, since the Plaintiff repaired the building of this case by bringing KRW 68,00,000 due to fire after the acquisition of the building of this case, the said cost should be recognized as necessary cost.
(b) Related statutes;
It shall be as shown in the attached Form.
C. Determination
1) Claim that a house for one household constitutes a non-taxable object
Article 155(2) of the Enforcement Decree of the Income Tax Act provides that Article 154(1) shall apply to cases where a household which owns inherited houses and one other house in Korea transfers general houses, deeming that it owns one house in Korea, and that Article 154(1) shall apply to the case where a person who owns one house for one household and becomes exempt from capital gains tax due to his/her intention or choice but becomes two houses for one household due to the reason that he/she is inherited, if he/she transfers the house he/she owned before inheritance, he/she shall not be entitled to the non-taxation benefits on the house and thereby relieves the disadvantage due to the extinguishment of non-taxation benefits (see, e.g., Supreme Court Decision 92Nu15680, Feb. 9, 1993).
The plaintiff acquired a single house on the ground of the above 313-3 ground before the death of ParkB who had resided with the plaintiff while living together with the plaintiff and formed one household, and it does not hold two houses only before the inheritance commencement but only after the inheritance begins. Thus, the plaintiff cannot be subject to the special exception of Article 155 (2) of the Enforcement Decree of the Income Tax Act. Thus, this part of the plaintiff's assertion is without merit.
2) Claim to deduct necessary expenses
According to Gap evidence No. 5-1, around September 19, 2002, it can be acknowledged that a fire had occurred on a single-story house of the AAA Dong 313-3 owned by the plaintiff and the building of this case and ParkB around September 19, 2002. However, it is insufficient to recognize that the entry of evidence No. 5-2 alone requires 68,000,000 won as the repair cost of the building of this case due to the fire, and there is no other evidence to acknowledge this differently, the plaintiff's assertion of this part is without merit.
3. Conclusion
Thus, the plaintiff's claim of this case is dismissed for reasons.