Suwon District Court-2017-Gu Group-878 ( October 18, 2018)

Examination-transfer-2017-0044 (23 June 2017)

Land for one house for one household subject to non-taxation of capital gains shall be applicable;

Even if a house corresponding to one house for one household has been transferred by expropriation, if the appurtenant land is transferred after five years have elapsed from the transfer, it does not correspond to the land annexed to one house for one household subject to non-taxation of the capital gains tax.

2018Nu57324 Revocation of disposition of imposing capital gains tax

IsaA

a) the Director of the Tax Office

Suwon District Court Decision 2017Gudan8778 Decided July 18, 2018

October 19, 2018

November 30, 2018

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance shall be revoked. The Defendant’s imposition of capital gains tax of KRW 67,468,240 on January 16, 2017 against the Plaintiff shall be revoked.

1. Details of the disposition;

The court's reasoning for this part is that "b Eup" in Section 2, Section 3, Section 4 of the judgment of the court of first instance is "B B B", "the land prior to the substitution of this case" in Section 3, Section 4 is "the land prior to the substitution of this case", Section 6 "from February 11, 201, to "the above land" in Section 7, "the land prior to the substitution of this case was completed on February 14, 201 for the housing of this case on February 14, 2011, and Section 8, "the land of this case was completed on February 11, 201," Section 7, "bbb Eup Ri", and Section 8, "the land prior to the substitution of this case" in Section 2, Section 9, and Section 2, "the land prior to the substitution of this case is changed to Section 4,000,000,000,000,000."

2. Whether the instant disposition is lawful

A. Plaintiff’s assertion and relevant statutes

The court's reasoning for this part is that "land after the replotting of this case" is changed to "land after the replotting of this case" in the 3th 10th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th.

B. Determination

Article 89 (1) 3 (a) of the Income Tax Act, Article 154 (1) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 27829, Feb. 3, 2017; hereinafter the same) and Article 72 (2) of the Enforcement Rule of the Income Tax Act include the structure, contents, etc. of Gap's evidence Nos. 1, 2, Eul evidence Nos. 1, 2, and 3. In light of the following circumstances, since the land of this case was transferred five years after the date of transfer due to consultation on the purchase of land for public use, it cannot be deemed that the land of this case constitutes the land of one household which is exempt from capital gains tax, and thus the disposition of this case cannot be deemed unlawful. Thus, the plaintiff's above assertion is without merit.

1) Article 89(1)3 (a) of the Income Tax Act provides that, while Article 89(1)3 (a) of the same Act provides that, where one household holds one house, a house meeting the requirements prescribed by Presidential Decree (excluding a high-priced house the value of which exceeds the standard prescribed by Presidential Decree) and a appurtenant land, income tax (hereinafter referred to as “income tax on capital gains”) shall not be imposed on any income accruing from the transfer of land within the area calculated by multiplying the area on which the building is built by the

2) The Act and subordinate statutes that are enforced as of December 31 of each year when the taxable period ends (see Supreme Court Decision 2012Du7400, Feb. 15, 2013), barring any special circumstance, the capital gains tax for which tax liability is established upon the termination of the taxable period, is applicable (see Supreme Court Decision 2012Du7400, Feb. 15, 2013). In this case, as alleged by the Plaintiff, the main sentence of Article 154(1) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 27829, Feb. 3, 2016) is not in force on March 30, 2016,

However, the main text of Article 154(1) of the former Enforcement Decree of the Income Tax Act provides that "one house for one household prescribed by Presidential Decree under Article 89(1)3 (a) of the Act means that where a resident and his/her spouse together with the family members who make a joint living at the same address or same place of residence (hereinafter referred to as "one household") possess one house in Korea as of the date of transfer, the period of holding the relevant house is at least two years (three years in cases of a resident who falls under subparagraph 2 of paragraph (8)).

3) Article 72(2) of the Enforcement Rule of the Income Tax Act provides that in applying Article 154(1) of the Decree, where the land appurtenant to the house is transferred by dividing it into shares (including where the land appurtenant to the house is transferred in shares: Provided, That the same shall not apply to cases where the house falling under the main sentence of Article 154(1) of the Decree and the land appurtenant thereto are transferred in shares), the land on the transferred part shall not be deemed the land appurtenant to the one house for one household under Article 89(1)3 (a) of the Act, and where the house is transferred by dividing it into two or more houses (excluding cases where the house falling under the main sentence of Article 154(1) of the Decree is transferred in shares), the house first transferred shall not be deemed the one house for one household. In this case, where a part of the house and appurtenant land are expropriated by consultation, expropriation under the Land Compensation Act and under other Acts, the relevant house (including the land appurtenant thereto), the remaining land and the remaining house (including the land appurtenant land) transferred within five years

4) In light of the structure and contents of the foregoing statutory provisions, the principle of strict interpretation of the tax statutes, and the principle of non-taxation on capital gains tax on one house for one household, etc., even if a house corresponding to one house for one household was transferred by expropriation, etc., if a appurtenant land was transferred after five years from the transfer thereof, it cannot be deemed that it constitutes land annexed to one house for one household subject to non-taxation on capital gains tax, regardless of whether there was any inevitable reason for not being transferred within five years (see Supreme Court Decision 2013Du12782, Nov. 14, 2013).

5) However, as seen earlier, since the instant land was transferred after five years from the time of the transfer by consultation on the land for public use, it cannot be deemed that it constitutes the land annexed to one household, which is exempt from capital gains tax, and thus, the instant disposition cannot be deemed unlawful.

6) In light of the structure, contents, and interpretation of the aforementioned statutory provisions, Article 154(1)2(a) of the former Enforcement Decree of the Income Tax Act only provides that the period of possession and residence shall not be restricted, and Article 72(2) of the Enforcement Rule of the Income Tax Act applies to cases where part of the house or land of one household is transferred in installments. Thus, the Plaintiff’s assertion that the instant disposition was unlawful because the transfer of land constitutes a non-taxation of capital gains tax cannot be accepted.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.