Examination transfer 2008-0021

Appropriateness of the assertion that the transferred house is a temporary two houses

In the situation of A’s ownership, the Plaintiff’s wife had a house B with the same living at the same address, and the Plaintiff and wife had already acquired the instant house C before the transfer of the instant house and paid the remainder and completed the registration of transfer of ownership, the disposition imposed on deeming the Plaintiff as three houses for one household is justifiable.

The contents of the decision shall be the same as attached.

Article 89 (Non-Taxable Transfer Income Tax)

Article 95 (Transfer Income Amount)

1. The plaintiff's claim is dismissed.

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

The defendant's disposition of imposition of capital gains tax of 339,388,420 won (the amount of KRW 339,388,424 of the complaint seems to be a clerical error) against the plaintiff on December 1, 2007 is revoked.

1. Basic facts

A. A. Around December 30, 1982, the Plaintiff acquired ○○○○-dong 152-○ 139.1 square meters, and newly built a second floor house on the ground around July 2, 1987 and owned it on the same ground. On January 19, 2007, the Plaintiff transferred the said site and housing (hereinafter “the instant housing”) to KRW 1,037,00,000. The acquisition value of the instant housing is KRW 395,63,413.

B. On December 20, 2006, the Plaintiff’s wife and her wife, who had lived together with the Plaintiff at the same address, acquired on December 20, 2006, a house of 365 ○○-dong, Seoul, 365- ○○-dong, 172.2 square meters and its ground level (hereinafter “instant ○○-dong house”) and possessed it until the said transfer was made.

C. On January 8, 2007, the Plaintiff and the Man-dong Housing completed the registration of ownership transfer on the housing of 31 ○○-dong, Seoul ○○-dong and 152 m2 m2 and 2 m2 above ground (hereinafter “○-dong Housing”).

D. The Plaintiff calculated gains on transfer pursuant to Article 95(3) of the Income Tax Act on the ground that the transfer of the instant housing constitutes a temporary two housing transfer under Article 155(1) of the Enforcement Decree of the Income Tax Act, and paid 36,384,80 won as the income tax accordingly.

E. For this reason, the defendant decided and notified 339,38,420 won after deducting the paid tax amount from the transfer income tax amount calculated in accordance with Article 104(1)2 of the Income Tax Act on December 1, 207, on the ground that the plaintiff has three houses for one household, and there is no room for applying the above temporary two houses provision to the transfer of the instant house, and that the tax rate stipulated in Article 104(1)2-4 of the Income Tax Act shall apply to this case.

[Reasons for Recognition] Evidence No. 2-1, 2, 3, Evidence No. 3-1, 2, 3, Evidence No. 6, Evidence No. 7-1 through 4, Evidence No. 1, 2, Evidence No. 5-1, 2, Evidence No. 6-1, and 6-2, and the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The sales contract of ○○ Dong Housing was December 5, 2006. The remainder payment date under the initial sales contract was January 22, 2007. In the event that the Plaintiff paid the remainder normally pursuant to the above sales contract, the Plaintiff’s household did not own any other house except the instant ○ Dong Housing at the time of transfer of the instant house, and the Plaintiff’s transfer of the instant house within one year from the time of acquisition of the instant ○○ Dong Housing, thereby constituting a temporary 2 house owner under Article 155(1) of the Enforcement Decree of the Income Tax Act. However, considering the fact that it is necessary to pay the remainder early to the Plaintiff and ○○ Dong Housing’s director, who is the transferor of the instant ○○ Dong Housing, there was no need to pay the remainder early to the Plaintiff and ○○○ Housing, and the Plaintiff and ○○○ Housing’s remainder payment date was paid in advance from the Defendant’s 13 housing unit, and the Plaintiff was also unable to maintain the Plaintiff’s 11-year old-old housing for the purpose of this case.

(b) Related statutes;

Article 89 (Non-Taxable Transfer Income Tax)

Article 95 (Transfer Income Amount)

C. Determination

In light of the principle of no taxation without law, the fact of taxation requirements or non-taxation requirements, and the interpretation of tax laws and regulations shall be strict, and no final interpretation or analogical interpretation shall be permitted. Thus, inasmuch as the Plaintiff’s wife at the time of transfer of the instant house, whose livelihood had been living together with the Plaintiff at the same address, had been holding the instant ○○dong house, and the Plaintiff and ○○ order had already acquired the instant house prior to the transfer of the instant house and completed the registration of transfer of ownership by paying the remainder of payment, it cannot be deemed that there was any illegality in the disposition by deeming the Plaintiff as a 3rd house per household solely on the ground that the Plaintiff’s assertion was insufficient, and the instant disposition is legitimate.

3. Conclusion

Therefore, the plaintiff's claim seeking the revocation of the disposition of this case is without merit, and this is dismissed. It is so decided as per Disposition.