The defendant's disposition that corrected the capital gains tax by deeming the family room of this case as being a commercial building is legitimate.

The evidence submitted by the Plaintiff alone cannot be deemed to have been used as a house, and rather, it is reasonable to view that the instant room was used as a commercial building.

Article 89 of the Income Tax Act

Daejeon District Court-2018-Gu -10163 ( April 25, 2019)

GaO

The Director of the National Tax Service

Mar. 28, 2018

April 25, 2018

1. Details of the disposition;

A. On September 8, 2003, the Plaintiff completed the registration of ownership transfer on the housing of 264 square meters and 177.99 square meters and 185.66 square meters and 177.99 square meters of residential and neighborhood living facilities of 208.7 square meters of residential and rural floors of 177.9 square meters of residential and rural facilities (hereinafter referred to as the “instant building,” and collectively referred to as the “real estate”). The Plaintiff sold the instant real estate to DoD on June 7, 2016, and completed the registration of ownership transfer in the name of DoD on July 6, 2016.

B. The Plaintiff reported the transfer income tax on the instant real estate to the Defendant, with the area of the housing of the instant building (185.66 square meters on the ground level 185.66 square meters on the ground level + 208.7 square meters on the ground level / 394.36 square meters on the ground)

145.15 square meters on 145.15 square meters on 1st floor + 32.84 square meters on 1st underground floor + 131.41 square meters on 1st floor + 46.58 square meters on 1st floor = 355.98 square meters). The instant building was deemed a house and reported as non-taxation for one household.

C. However, on January 3, 2018, the Defendant: (a) deemed that the second floor 204 square meters of the instant building (44.74 square meters; hereinafter “the instant house room”) that the Plaintiff included on the Plaintiff’s housing area constituted “BB philosolosolosolosolosolosolosolosolo; and (b) on the other hand, the housing area of the instant building is 349.62 square meters (=394.36 square meters – 44.74 square meters); (c) on the other hand, the commercial area is 400.72 square meters (=35.98 square meters + 44.74 square meters) and the commercial area is 40.72 square meters; (b) on the other hand, the instant disposition was issued to correct and notify the transfer income tax of 53,326,760

D. The Plaintiff filed a tax appeal on March 20, 2018, but was dismissed on July 30, 2018.

[Reasons for Recognition] Unsatisfy, entry in Gap evidence 1 to 4 (including a tentative number; hereinafter the same shall apply),

The purport of all pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Considering that the head of the instant room has room, bathing room, kitchen, cell, beer, etc., and its structure and facilities were suitable for residential purposes, and that the Plaintiff and the Plaintiff’s mother actually resided in the head of the instant room from November 201, 2010, the head of the instant room constitutes a house under the Income Tax Act. Accordingly, the instant disposition that differs from the premise is unlawful.

B. Determination

Whether a building constitutes a house under Article 89(1)3 of the Income Tax Act and Article 154(1) of the Enforcement Decree of the same Act shall be determined by whether the actual purpose of use is a building actually offered for a residence regardless of the classification of the use of injury to the building, regardless of whether the use of the building or injury is a house. As the structure, function, or facilities of the building are in a state suitable for a residence as its original residential purpose, and the residential function is maintained and managed as they are, it shall be deemed as a house in the case of a building in which the building or a third party is able to use for a house at any time (see Supreme Court Decision 2004Du

In full view of the above evidence, the facts that the Plaintiff and CCC’s domicile on the resident registration card was the head of this case from November 5, 2010 to August 8, 2016, and the Defendant issued a tax notice to the Plaintiff on local income tax to the head of the instant head office.

However, the aforementioned facts and evidence revealed as follows, i.e., ① the purpose of the instant heading room is a neighborhood living facility on the building ledger, ② CCC installed a mutual sign "B philosophical center" on the outer wall, and run the instant heading room in the name of "BB philosolosolosolosolosolosolosolosolosolosolosolosolosolosolosolosolosolosolosolosolosolosolosolosolosolosolosolosolosolosolosolosolosolosolosolosolosolosolosolosolosolosolosolosolosolosolosolosolosolosolosolosolosolosolosolosolosolosolosolosolosolosolosolosolosolosolosolosolosolosolosolosolosolosolosolosolosolosolost, ③ A licensed real estate agent EE who arranged the instant real estate sales contract between the Plaintiff and DD.

Therefore, the plaintiff's assertion is without merit, and the disposition of this case is legitimate.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.