Incheon District Court-2015-Gu Group-2076 ( October 25, 2016)

It is not subject to non-taxation because it has not owned a house for three years or more; and

(main point of the original trial) Since the retention period by the date of authorization for administration and disposal does not reach three years, it does not constitute non-taxation for one house per household.

2.2 Doese

Article 89 of the Income Tax Act

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 shall file a petition of appeal on February 1, 2015 (the petition, an application for modifying the purport of the claim, and the petition of appeal)

The phrase " February 4, 2015," written amendment of November 30, 2016, appears to be a clerical error) against the plaintiff.

The imposition of capital gains tax of KRW 000 (including additional tax) for the year 2007 shall be revoked.

1. Details of the disposition;

The reasoning for this part of this Court is that the corresponding part of the judgment of the first instance is the same as that of the corresponding part of the judgment of the first instance except for the addition of some of the following matters in the judgment of the first instance (from No. 2. 1 to No. 15). Thus, this Court shall accept it as it is in accordance with Article 8(2) of the Administrative Litigation Act and Article

Following the second 3rd "Enforcement Date", "after the authorization of project implementation was granted on March 30, 2005", and "42,382,380 won" in the 9th 9th , shall be added "(including additional taxes)".

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The plaintiff sought revocation of the disposition of this case, and asserts to the following purport of its illegality.

1) The Plaintiff acquired the instant house as a division of property in the process of divorce between the former and the latter’s wife. The retention period for determining whether it constitutes a non-taxation object of capital gains tax on one house for one household should be determined on the basis of the time the other party acquired, in case where the said house was transferred after converting it into the right to move into the association member’s occupation

2) However, in the course of divorce, the Plaintiff was sharing one-half of the shares in Aa and A, among 00 apartment houses.

1/2 of the shares in this case were transferred to Aa, and the Corporation acquired the housing in this case.

Therefore, whether the above holding period of three years is met shall be 200. Aa transferred a share of the above 00 apartment0 apartment0.

4. It shall be calculated counting from 27.

3) Therefore, the Plaintiff owned the instant housing for at least three years in accordance with the relevant laws and regulations.

Therefore, the transfer of the occupancy right of this case is subject to non-taxation of capital gains tax.

B. Determination

1) Article 89(1) of the former Income Tax Act (amended by Act No. 9897 of Dec. 31, 2009)

Subparagraph 3 shall apply to income accruing from the transfer of a house for one household as prescribed by the Presidential Decree.

The former Enforcement Decree of the Income Tax Act ( February 22, 2008) provides that no capital gains tax shall be imposed.

Article 154(1) of the former Act (amended by Presidential Decree No. 20618) provides that “one house for one household” means one year of age.

In case where one house is held in Korea as of the date of price transfer, the retention period of the relevant house shall be 3.

state that it means more than one year.

2) Meanwhile, the transfer income tax shall not be levied on the transfer of one house for one household, deeming the transfer of the association member's relocation right as one

The former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 18850 of May 31, 2005) as to whether or not to be made

Article 155 (16) of the former Enforcement Decree of the Income Tax Act (hereinafter referred to as the "former Enforcement Decree of the Income Tax Act")

Members of a rearrangement project association implementing a housing redevelopment project or a housing reconstruction project under the Non-Act;

(In the case of a housing redevelopment project, the authorization date of management and disposal plan under Article 48 of the same Act, and housing reconstruction case.

In the case of livestock projects, the authorization date for project implementation under Article 28 of the same Act or the filing date of existing house before it;

Whenever, the existing house falling under the provisions of Article 154(1) as of the date of removal of the existing house.

(ii) the status of being selected as an occupant through the association (as such);

Where transferring a land (including land to be used), if there is no other house as of the date of transfer, the Act.

Notwithstanding the provisions of Article 94 (1) 2 (a), one year old under Article 154 (1).

The former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 1870, May 31, 2005) provides that "one house shall be deemed one house."

No. 1850 was amended by the Enforcement Decree of the Income Tax Act, and the Decree partially amended by the Enforcement Decree of the Income Tax Act Article 155(16) of the State.

In the case of the Housing Redevelopment Project, the authorization date of the management and disposal plan under Article 48 of the same Act, and the Housing Reconstruction

In the case of a project, "date of authorization for project implementation under Article 28 of the same Act or before it";

§ 1 of the Addenda to the amendment to the Management and Disposal Plan as of or before the date of authorization of the management and Disposal Plan

This Decree shall enter into force on the date of its promulgation, and this Decree shall enter into force in Article 4 of the Addenda.

members of housing reconstruction project which has been approved under the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions;

15 and 166 shall apply to the calculation of one house for one household and gains on transfer.

Notwithstanding the amended provisions, the right to move in of this case shall be governed by the previous provisions.

as seen earlier, the project implementation authorization shall be granted on March 30, 2005, prior to the enforcement of the Enforcement Decree of the above amendment.

Since the member of the housing reconstruction project acquired the housing reconstruction project, the time of the transfer is not until September 29, 2007.

Article 155 (16) of the former Enforcement Decree of the Income Tax Act shall be applied.

3) However, in full view of the purport of the entire pleadings as to Gap evidence Nos. 6 and Eul evidence Nos. 3

on November 203, 2003, the housing of this case owned by bb, not all wife Aaa, and bbb.

It is recognized that the plaintiff was transferred from Hankdong to the ground of sale. Thus, the plaintiff's case

The period of retention of a house shall be calculated from November 20, 2003, and Article 155 of the former Enforcement Decree of the Income Tax Act.

16) The time of the housing reconstruction project for the housing, etc. in this case from November 20, 2003 to the time of implementation of the housing reconstruction project in this case

Since it is apparent that the period of holding is less than three years until March 30, 2005, which is the date of authorization of conduct, it is apparent that it is less than three years.

No intentional assertion is acceptable (the plaintiff acquired the house of this case from the trial to the division of property).

Since the transfer of the right to move in of this case is also subject to capital gains tax due to the nature of division of property.

It is argued that the acquisition of real estate by division of property is not possible, but for the value of assets.

The transfer of real estate acquired by division of property shall not be deemed a transfer, and thereafter the transfer of the real estate thereafter.

Even in the case, it does not constitute a commercial transfer of assets.

3. Conclusion

Thus, the plaintiff's claim of this case seeking the cancellation of the disposition of this case is without merit.

Therefore, the judgment of the court of first instance is just and the plaintiff's appeal is without merit.

Therefore, it is dismissed. It is so decided as per Disposition.