Determination as to whether the transfer of the instant housing meets the requirements for temporary 2 houses non-taxation;

Since the transfer of the instant house after the lapse of three years from the date of acquisition of the previous house, the instant disposition is legitimate because it does not meet the requirements for non-taxation.

Article 89 of the Income Tax Act

Daegu District Court 2019Guhap20084 revocation of revocation of capital gains tax rectification

N

O Head of tax office

September 11, 2019

October 16, 2019

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1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The defendant's rejection of a claim for correction of an additional disposition issued by the capital gains tax of KRW 40,717,182 (tax amount of KRW 20,584,570) in March 9, 2018 shall be revoked.

1. Details of the disposition;

A. The plaintiff acquired on November 10, 1982 00 00 - 00 - 16-18 - The plaintiff's land and its ground houses ( these houses)

He transferred 360,000,000 won on November 17, 2017 and reported 40,717,180 won of capital gains tax on January 31, 2018.

B. On April 13, 2018, the Plaintiff’s land owned by “the Defendant” 00,000 Dong 17-6, and its land

On December 13, 2016, the acquisition date of the commercial house(hereinafter referred to as the "second house of this case") was the date of acquisition of the second house(hereinafter referred to as the "the second house of this case") and filed a claim for correction on the ground that the transfer income of the first house of this case should be exempted from taxation according to the special

C. On June 7, 2018, the Defendant rejected a request for correction on the ground that “the date of actual acquisition of the instant second house on March 27, 1993, and thus, the date of acquisition is not subject to special cases concerning one house per household” (hereinafter “instant disposition”). The Plaintiff appealed against the request for adjudication on June 28, 2018, but the said request for adjudication was dismissed on October 16, 2018.

Facts that there is no dispute over recognition, Gap's evidence 1 through 9, Eul's evidence 1, and the whole pleadings

Purport

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The acquisition date of the second house of this case is December 13, 2016, the purchase price of the second house of this case was settled by the settlement recommendation decision (00 district court 2016Na0000), and pursuant to the special case of the first house for one household under Article 89(1)3 of the Income Tax Act and Article 155(1) of the Enforcement Decree of the Income Tax Act (in the case where another house is acquired after the lapse of one year from the date of acquiring the previous house and the previous house is transferred within three years from the date of acquiring the other house), capital gains on the second house of this case must be exempted. Accordingly, the disposition of this case on the premise that the acquisition date of the second house of this case is March 27, 1993 is unlawful.

B. Relevant provisions

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

(c) Fact of recognition;

Each of the above evidences, Gap evidence of 10 to 15, Eul evidence of 2 to 9

In full view of the purport of the whole, the following facts are recognized.

1) On March 27, 1993, the Plaintiff’s wife leased KRW 26,00,000 to BB and its wife, but was not able to receive the said loan. On March 27, 1993, the Plaintiff’s wife drafted a sales contract to purchase the instant second house with KRW 96,00,000 (contract deposit + KRW 35,000,000 + 26,140,000 + 34,860,000 + 34,000).

2) At the time, A and B agreed that the contract amount shall be paid by means of offsetting the loan claim as stated in the above paragraph 1 against B, etc. of AA, and the intermediate payment shall be paid by AA instead of the loan claim for the second house of this case, and the contract amount shall be paid to the seller at the same time as the contract was entered into in the sales contract, and the seller received the intermediate payment, and the buyer received it on March 27, 1993.

3) Meanwhile, by April 30, 1993, AA stated that the sales contract for the second house of this case would pay the remainder of KRW 34,860,000 to BB. However, A and B entered into a lease agreement with B as of March 27, 1993, stating that the lease deposit for the second house of this case was received by AB from March 27, 1993 in lieu of direct payment and receipt of the remainder. However, A and B entered into a lease agreement with B as of March 27, 1993 that the lease deposit for the second house of this case was leased from March 27, 1993 to March 27, 1995.

4) Upon the death of BB on September 27, 1993, AA paid 28,000,000 won toCC on April 11, 1997. around that time, AA paid acquisition tax on the instant second house in the name of GG, which is an son of AA, and was prepared as necessary for the implementation of the procedures for registration of transfer of ownership, such as entrusting the registration to a certified judicial scrivener office, but CCC failed to reject registration and complete registration on the ground that the settlement of lease deposit was not completed.

5) On April 11, 1997, AA paid 28,000,000 won toCC and then paid 28,000,000 won to it, stated that the receipt is “28,000,000 won as a deposit for lease on a deposit basis.”

6) After that, AA filed a lawsuit claiming the ownership transfer registration (hereinafter referred to as "related lawsuit") againstCC, which completed the registration of ownership transfer due to the inheritance by consultation division with respect to the instant second house, and won in the first instance trial (hereinafter referred to as "relevant case"). In the appellate trial, “CC shall implement the procedures for the registration of ownership transfer with respect to the instant second house, but shall waive the deposit amount of KRW 7,000,000 and reside until September 30, 2021,” the above decision was finalized on December 13, 2016 (hereinafter referred to as "related civil case").

7) AA completed the registration of transfer of ownership with respect to the instant second house due to sale and purchase conducted on January 13, 2017.

D. Determination

1) Article 89(1)3 of the Income Tax Act, Articles 154(1) and 155(1) of the Enforcement Decree of the Income Tax Act provides that, where one household having one house in Korea comes to temporarily possess two houses by acquiring another house before transferring the house (hereinafter the previous house), it shall be deemed as one house for one household if it acquires another house after the lapse of one year from the date of acquiring the previous house and transfers the previous house within three years from the date of acquiring the other house, it shall be deemed as one house for one household and shall not be subject to capital gains tax.

The fact that the taxpayer bears the burden of proof, barring special circumstances (see, e.g., Supreme Court Decision 2005Du8443, Dec. 23, 2005).

2) Meanwhile, Article 98 of the Income Tax Act provides that, in principle, the time when the assets are transferred shall be the date when the proceeds of the assets are settled. In the case of the sale of real estate, not only the case where the proceeds of the sale are paid in full but also the case where the payment in full is deemed to have been made in full in common

In doing so, it is reasonable to view that there is a transfer of real estate meeting the taxation requirements of capital gains tax.

Whether the compensatory benefits are to the extent that it is reasonable to deem that almost all the compensatory benefits have been fulfilled by social norms.

The remaining amount of the unpaid balance and the ratio that it accounts for the total amount of the payment, and the unpaid balance remain;

In light of the background, etc., individual determination ought to be made on June 12, 2014.

See Supreme Court Decision 2013Du2037, supra.

3) In light of the relevant provisions and legal principles, in light of the following circumstances, the date of settlement of the price for the second house of this case on March 27, 1993, the date of settlement of the price for the second house of this case on December 13, 2016, the Plaintiff’s assertion premised on the fact that the date of settlement of the price for the second house of this case was December 13, 2016 is without merit.

A) As of March 27, 1993, A and B entered into a sales contract for the instant secondary housing as of March 27, 1993, and entered into a lease contract with the amount equivalent to the remainder under the said sales contract as a deposit for lease. In particular, A and B entered into a contract with the receipt of a deposit for lease under a lease contract. Thus, it can be deemed that A and B settled the obligation to pay the remainder under the said sales contract through the said lease contract. In view of the content of the relevant civil case, A and A were deemed to have still the obligation to pay the remainder under the said sales contract. In short, A and B are deemed to have the obligation to pay the remainder under the said sales contract, i.e., the obligation to pay the remainder and the obligation to return the deposit for lease. In light of

B) The continued existence of BB andCC in the instant second house is based on the lease agreement regarding the instant second house, and is not due to the failure to pay the remainder of the instant second house.

C) Although BB andCC did not receive the remainder of KRW 34,860,000 for 20 years from the date of conclusion of the sales contract, it did not claim AA to urge A to pay the remainder of the instant second house, or to cancel the sales contract on the instant second house on the ground of nonperformance of obligation, and only asserted that BB andCC terminated the contract on the ground of the remainder of payment only after the relevant lawsuit was filed.

D) After the death of “B”, “CC” demanded AA to return the lease deposit, not the remainder of the instant second house, but the return of the lease deposit. Accordingly, AA paid 28,000,000 won to “CC on April 11, 1997” and stated in the receipt that part of the lease deposit was returned.

E) On June 27, 1997, GG, A and the Plaintiff’s ASEAN paid acquisition tax on the instant 2 house, and continued to pay property tax on the instant 2 house from that time, even though the registration of the instant 2 house was not completed.

F) AA asserted that, with respect to the payment of the remainder of KRW 34,860,000 in a related lawsuit, BB andCC agreed to continue to reside in the second house of this case and to pay the deposit in the form of returning the deposit upon the termination of the lease. This assertion was accepted and won in the first instance trial, and the decision of recommending reconciliation became final and conclusive in the appellate trial to the same effect.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so ordered as per Disposition.

partnership.