Cho Jae-2016-China-0973 ( October 13, 2016)

The building of this case constitutes a house at the time of transfer.

Even if it is temporarily used for a non-residential purpose, the structure, function, or facility is in a state suitable for a residence as its original residential purpose, and the residential function is maintained and managed as it is, so it should be viewed as a house for a building where it or a third party can use for a house at any time

Article 89 (Non-Taxable Capital Gains)

2016Gudan6229 Revocation of Disposition of Imposing capital gains tax

OO

O Head of tax office

January 10, 2018

February 7, 2018

1. The Defendant’s imposition of the capital gains tax of 20O.O.O. for the Plaintiff shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

Cheong-gu Office

The same shall apply to the order.

1. Details of the disposition;

A. The Plaintiff: (a) acquired 3/5 shares of 19O.O.O.O.O.O.O.O.O.O.O.O.O.O.O.O.O., and 3/5 shares of 36.36 square meters of a single-story house on its ground (hereinafter “the instant building”); (b) owned 200O.O.O.O.O.O.O.B. BB corporation, after receiving the full amount of the purchase price, entered into a contract to transfer 200O.O.O.O.O.O.O.O., and completed the registration of transfer of ownership.O.O., etc.

B. The Plaintiff reported and paid the capital gains tax of 2015 to the Defendant by applying Article 160 of the Enforcement Decree of the Income Tax Act to the calculation of gains on transfer of expensive houses.

C. However, the Defendant: (a) deemed that the instant building was a house on the public register; (b) deemed that it was actually used for business purposes; and (c) excluded the provision on the calculation of capital gains tax on the said high-priced house; (b) notified the Plaintiff of the pre-determination of capital gains tax for the year 200O.O.O.O.O.; (c) accordingly, the Plaintiff filed a request for pre-determination of capital gains tax for the 200O.O.O.O.O.O.; (d) however, the Defendant issued a disposition to correct and notify the KRW O.O.O.O.O. for the Plaintiff in 2015 (hereinafter “instant disposition”).

D. The Plaintiff appealed and filed an appeal with the Tax Tribunal, but was dismissed 20O.O.O.O.O.

[Ground of Recognition] In the absence of dispute, Gap evidence 1, 2, 12, Eul evidence 1, 2, and 1 and 2

(hereinafter the same shall apply), the purport of the whole pleading

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Although the Plaintiff and AA had the instant building leased to a printing company for about twenty (20) years and used it as a printing shop, the instant building constitutes a house since the Plaintiff actually resided from around 1941 to November 1, 198, and the Plaintiff’s family resided from around December 2014 to March 2015, which was the time of transfer, and thus, the instant disposition against this is unlawful.

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

If the above evidence is added to Gap evidence 4, 5, 7 through 11, 13, 15, 18, and Eul evidence 3, the following facts are recognized:

(1) The building of this case was newly constructed on May 1, 1941 and 36.36 square meters in sap and sap.

One room, kitchen, toilets, toilets, living rooms, and one room on the second floor; and

From November 20, 198 to December 2, 2014, the printing company was leased to the printing company and used as the printing office business place.

(2) The number of the instant building is indicated in the “place of domicile of an elementary school, middle school, and high school with respect to the Plaintiff.” The Plaintiff’s resident registration certificate is indicated as having been transferred to the lot number of the instant building on December 4, 2014. OO-dong O-dong O-dong O-dong O-dong O-car, which had been residing in the immediately preceding year, is the place determined by the Plaintiff as the exclusive area of KRW 10 million and KRW 380,000,000, monthly rent, and the lease period of December 11, 2014.

(3) Meanwhile, there are DaD and ASEAN with the Plaintiff, and most DoD acquired U.S. citizenship and reside in the United States, and EE also repeats departure and entry into the Republic of Korea. The period of stay abroad is relatively longer, and the Plaintiff was staying in the Republic of Korea from December 13, 2014 to January 20, 2015 during the period for the Plaintiff’s assertion that he had been staying immediately before the transfer of the instant building.

(4) The Plaintiff opened an Internet and telephone on the instant building from December 29, 2014 to February 25, 2015, and the claim amount of January 2, 2015 to February 26, 2015 to KRW 26,670, and the electricity charge from December 26, 2014 to January 25, 2015 to KRW 6,810 (including KRW 66kWh, late 1,760), and the share used from January 26, 2015 to February 25, 2015 to KRW 11,220 (123kWh), from February 26, 2015 to March 19, 2015 to KRW 16,31,1531,200 from March 19, 2015 to KRW 130381,41,2531,204.

(5) From around 1991, the lessee, who had operated a printing house from around 191 to the time the Plaintiff moved into the instant building, installed a roof at the end of the instant building, installed a printing machine in the space, and used the existing building in the place of water work and office, etc., and the couple was also able to sleep at the kitchen, and the couple was also able to sleep together.

(6) On October 22, 2014, BB Co., Ltd., the transferee of the instant building, indicated the current status of use of the instant building as a house when applying for permission for a land transaction contract to the head of OOO on October 22, 2014. On August 2015, 2015, it verified that the building structure and status can be seen as a house when conducting a survey on the current status before removing the instant building.

D. Determination

Article 89 subparagraph 3 of the former Income Tax Act (amended by Act No. 6781 of Dec. 18, 2002), Article 89 subparagraph 3 of the Enforcement Decree of the same Act, in case where a person who transfers a house owns another building.

The issue of whether the building constitutes "house" under Article 154 (1) of the "(amended by Presidential Decree No. 17456 of Dec. 31, 2001)" shall be determined by the approval of the building actually used for the residence regardless of the usage classification of the injury to the building. Even if the building is temporarily used for other purposes than residence, its structure, function, or facility is in a situation suitable for residence as its original residential purpose, and residential function is maintained and managed as it is, so that the building can be used for the house at any time (see Supreme Court Decision 2005Da17456 of Apr. 28, 200)," and the following circumstances revealed by the above recognition, i.e., the building was its original use, and actually resided together with the plaintiff's family members at the time of the building, and even if the building was used for other purposes than for other purposes, it seems necessary for the plaintiff to have been used for the building at the time of printing and using the building at 200,000.

3. Conclusion

Then, the plaintiff's claim of this case is justified and it is so decided as per Disposition.

partnership.