Where the previous house is destroyed and newly constructed, the period of holding the previous house shall be added to the amount of special deduction for long-term holding of the land for one household.

Article 154 of the Enforcement Decree of the Income Tax Act provides that when determining the requirements for non-taxation for one household, the period of the destroyed house and the newly-built house shall be aggregated, and it is reasonable to interpret that the period of possession shall be aggregated even in the case of one house for one household which fails to meet

Article 95 of the Income Tax Act

Seoul Administrative Court 2013Gudan9154

NewA

The Director of Gangnam District Office

August 16, 2013

September 13, 2013

1. The defendant's rejection disposition against the plaintiff on May 7, 2012 against the plaintiff shall be revoked.

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

Cheong-gu Office

It is so decided as per Disposition.

1. Details of the disposition;

A. On July 9, 2008, the Plaintiff transferred OB Housing Co., Ltd. 55-11 (hereinafter referred to as “instant land”) and its ground and multi-household housing of the third floor above ground to the Korea National Housing Corporation. The instant newly-built housing was newly built on September 30, 1996 after the Plaintiff removed the instant land BB Housing 8 Complex 68 (hereinafter referred to as the “former Housing”) acquired and owned before January 1, 1985.

B. On May 6, 2009, the Plaintiff reported and paid KRW OO of capital gains tax by applying Article 95(2) [Attachment 1] of the former Income Tax Act (amended by Act No. 9270, Dec. 26, 2008; hereinafter the same shall apply) to the long-term possession special deduction rate of 30/100 (not less than 10 years) as stipulated in [Attachment 1] of the Table 1] of the former Income Tax Act (amended by Act No. 9270, Dec. 26, 2008; hereinafter the same shall apply], and on March 5, 2012, Article 209 that the special deduction provision for one house per household shall apply to non-residents (Supreme Court Decision 2009Du2147, Jul. 14, 201); the period of possession should be less than 10/100 of capital gains tax for less than 10/104 of the instant land; and the deduction period of less than 10/40 of the instant land.

C. On May 7, 2012, the Defendant rendered the instant disposition rejecting the Plaintiff’s request for correction on the ground that the provision on special deduction for long-term possession of one house for one household cannot be applied to a nonresident. Accordingly, the Plaintiff filed a request for review with the Board of Audit and Inspection on July 30, 2012, and the Board of Audit and Inspection prescribed that the Plaintiff should impose tax on a non-resident in the same manner as the resident. As such, the Defendant decided to the effect that the newly-built house of this case constitutes one house for one household and should re-determine whether to rectify it again on January 29, 2013, applying the special deduction rate for long-term possession of the newly-built house of this case and the land appurtenant thereto to the newly-built house of this case to 44/100 pursuant to Table 2 of the key issue list, and the remaining land of this case still maintained the deduction rate of 30/100, and maintained the decision on rejection of correction.

Facts that there is no dispute over recognition, A1-2, the purport of the whole argument

2. The parties' assertion

A. The plaintiff's assertion

In applying the special deduction rate for long-term holding, the retention period shall be the date from the date of acquisition of the relevant asset to the date of transfer, and the instant land constitutes the land annexed to one household, as well as the period of the instant newly-built house, which was the land for the instant previous house, and as such, the special deduction rate for long-term holding shall be calculated by adding up the retention period for the previous house to the

B. Defendant’s assertion

As in the instant case, even if the retention period of land and its ground is different, there is no express provision in the Act and the Enforcement Decree regarding whether the long-term possession special deduction rate corresponding to one house for one household for the entire possession period of the land can be applied, and in order to treat the instant land as one house for one household. Thus, even if the retention period of the instant land is at least 20 years, only the period during which the instant newly-built house exists, which is subject to transfer, constitutes one house for one household, and the remaining period shall be interpreted to have been owned as a general site. However, if it is applied to the possession of one house for one household until the period during which there is no house, there is conflict that the special long-term possession deduction amount is excessive.

3. Whether the disposition is lawful;

A. Under Article 95(2) of the former Income Tax Act and Article 159-2 of the Enforcement Decree of the Income Tax Act (hereinafter “Enforcement Decree”), the amount of special deduction for long-term possession of one house per one household shall be based on the deduction rate by holding period prescribed in Table 2 (the highest 80%) rather than the deduction rate by holding period prescribed in Table 1 of the issue table 2 (the highest 30%). The requirement is that “where one household owns one house in Korea as of the transfer date, that is, one house for one household, and the holding period shall be three or more years,” but as in this case, whether the previous house corresponding to one house for one household can be removed and a newly-built house can be transferred after fulfilling the requirements of one house for one household, as well as whether it can be based on the issues table 2 applicable to one house for one household as to the total gains on transfer of the relevant land, the legitimacy of the plaintiff’s assertion should be determined by comprehensively taking into account the overall structure and purpose of the Act, the purpose of interpretation and the relevant provisions.

(5) The purpose of legislation is to promote the sound investment or ownership of real estate through the deduction of a certain amount in the calculation of transfer income amount for a long-term holding period of not less than three years, and to deduct the increase in prices for transfer income which has the characteristics of nominal income due to price increase, together with the permission of up to 80% for the transfer marginal profit of one house for one household under the proviso of paragraph (2) of the same Article is to consider that the first house for one household is essential for the stability of residential life and to eliminate the burden of transfer income tax on the first house holding by one household. (2) It is assumed that it is necessary to separate housing holding within the same period of one house holding period of one house holding and to calculate the aggregate ownership period of the previous house holding period of one house holding and one house holding period of one house holding without satisfying the requirements of the previous housing redevelopment project by providing the same method as the previous housing redevelopment project to the developer, even if the land is reconstructed or demolished due to reconstruction and reconstruction without satisfying the requirements of the first house holding period of one house holding period of one house holding.

C. Sub-committee

Therefore, the disposition of this case, which calculated the amount of special long-term holding deduction by applying the issue table 1 to the land of this case, is unlawful, and the plaintiff's assertion pointing

4. Conclusion

Therefore, the plaintiff's claim is justified.