Seoul Administrative Court 201Gudan31362 (Law No. 26, 2012)

In the case of a building, the structure, functions, facilities, etc. of which are originally used by the principal or a third party for a house, it shall be springed as a house.

The issue of whether a building constitutes a house shall be determined by whether the actual purpose of use is a building that is actually used for the residence regardless of the usage classification of the injury in the building, and as the structure, function or facilities of the building are in a state suitable for the 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 for which the building is used

Article 89 of the Income Tax Act

2012Nu3327 Revocation of Disposition of Imposing capital gains tax

1. The lowestA 2.B

1. Class 2 of the tax office; and

Seoul Administrative Court Decision 2011Gudan31362 decided September 26, 2012

August 28, 2013

October 16, 2013

1. Of the judgment of the court of first instance, the part against the Defendants regarding the part that exceeds the following order for revocation shall be revoked, and each of the plaintiffs' claims corresponding to the revocation part shall be dismissed. The imposition disposition by the head of the office of final tax office on December 15, 2010 against the Plaintiff LA on December 15, 2010 and the imposition disposition by the head of the office of final tax office on December 15, 2010 against the Plaintiff headB on December 15, 2010, respectively, shall be revoked.

2. The defendants' remaining appeals are dismissed, respectively.

3. Of the total litigation costs, the part arising between Plaintiff LA and Defendant Myan Tax Office shall be doublely borne by Plaintiff LA, the remainder by Defendant Myan Tax Office, and the part arising between Plaintiff Myan Tax Office and Defendant Myan Tax Office shall be doublely borne by Plaintiff Myan Tax Office, and the remainder by Defendant Myan Tax Office, respectively.

1. Purport of claim

The imposition of OOOOO on December 15, 2010 by the Head of E-ro Tax Office against Plaintiff LA on December 15, 2010 and the imposition of OOOOOOO on December 15, 2010 by the Head of E-Mapo Tax Office against Plaintiff M-B on December 15, 2010.

2. Purport of appeal

The judgment of the first instance is revoked. Each of the plaintiffs' claims is dismissed.

1. Details of the disposition;

The court's reasoning for this part is the same as the corresponding part of the reasoning of the judgment of the court of first instance. Thus, this part of the judgment is cited in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

2. Whether the disposition is lawful;

A. Summary of the plaintiffs' assertion

(1) The instant building was originally composed of three single-story buildings (A. 39.67 square meters, B. 19.82 square meters, C. 16.53 square meters, and C. 16.53 square meters). However, the lessee’s operation of restaurant in the name of "D.D. after performing expansion and reconstruction works so that the entire building of this case can meet the restaurant use," the building of this case constitutes the entire residential facilities, and the building of this case is divided into 115.5 square meters. Even if there is room to view A-dong building composed of 30 square meters and B/Dong 19.27 square meters, the building of this case is deemed to be a residential building, and the building of this case after the lessee’s expansion and reconstruction works, the entire building of this case constitutes a commercial building, and the building of this case shall be deemed to be a residential building of this case, and the building of this case shall not be deemed to be a residential building of this case, and the building of this case shall not be deemed to be a residential building of this case.

(b) Fact of recognition;

(1) Around July 2002, NCC leased the instant building from the Plaintiffs, and completed a move-in report on July 19, 2002 with their wife and three children, and increased and reconstructed part of the instant building for restaurant purposes without the permission of the competent administrative agency. Around December 7, 2003, it re-leased the instant building from the Plaintiffs as OOOO, monthly rent business income (from April 2004), and continued to reside in the instant building including the instant restaurant from around December 29, 2003 to around August 11, 2008.

[Reasons for Recognition] Gap evidence Nos. 3, Eul evidence Nos. 2, 3, and 5 (including paper numbers), the testimony of a witness at the trial and the purport of the whole pleadings

C. Determination

(1) Whether a building A constitutes a house

(A) Determination of 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 made by whether the actual purpose of use is a building actually being used for residence regardless of the usage classification of injury to the building. In the case of a building where its structure, function, or facility is in a state suitable for residence as its original residential purpose and its residential function is maintained and managed as it is, it shall be deemed as a house in the case of a building for which the principal or a third party can use as a house at any time (see Supreme Court Decision 2004Du14960, Apr. 28, 2005). However, determination of whether the building is a residence or a business use shall be made in full (see Supreme Court Decision 2004Du14960, Apr. 28, 200). In addition, even if a part of the building was used for a residential purpose, if

(B) In light of the above legal principles, it is reasonable to view that the building A is a house in full, taking into account the following circumstances, considering the evidence acknowledged earlier, the evidence acknowledged earlier, and the fact-finding conducted by the court of first instance on the head of Jongno-gu Seoul Metropolitan Government Office, and the purport of the entire arguments. Therefore, the plaintiffs' above assertion is without merit.

① In order for 5 family members to reside in a building of this case, the Trade Union established a building of this case, which consists of a room, floor, and kitchen, while residing in a building of this case which consists of a room, floor, and kitchen, and leased B and C building to others for residential purpose. After partial alteration of the structure of the building of this case, the building of this case started with restaurant business and continued to reside in the building of this case with family members including the female and the same who had tried to engage in the business until August 11, 2008. As above, the building of this case was in a state suitable for residential purpose and was actually used for residential purpose.

② As seen in light of the floor plan of the building submitted by the plaintiffs, it appears that the building A prior to the construction of the building of this case is divided into ‘blost, floor' with the part of ‘blost, floor', and ‘blost, kitchen' with the part of ‘blost, kitchen'. ③ It seems impossible to use the building of this case for the purpose of operating a restaurant in the building of this case, which was used by itself and his family members as their residence. The building of this case increased and reconstructed the building of this case and partly altered the structure of the building of this case. On the record, there is no objective material to know the present situation after the expansion and remodeling of the building of this case. However, while the building of this case was changed in the existing state of the building of the building of this case, the building of this case was changed in the structure of the building of the building of this case and the building of the building of B and C with the building of the building of this case which was connected with the building of the building of this case and the building of the building of this case.

(4) On the other hand, the plaintiffs asserted that the building of this case was modified to be suitable for the kitchen room for business use, while the construction of the building of this case was increased and reconstructed, but there is no evidence to acknowledge it." ⑤ The Jongno-gu Seoul Metropolitan Government Office regarded the building of this case as a neighborhood living facility and imposed property tax on the building of this case, but it is difficult to determine the appropriateness of the disposition of imposition because there is no evidence which the Jongno-gu Seoul Metropolitan Government Office had used as the basis for the property tax at the time of the imposition of the property tax on the building of this case. Thus, it is difficult to conclude that the building of this case does not constitute a house A solely because the building of this case was in heavy

(2)Calculation of the amount of duty;

(A) As seen earlier, 70 square meters of the instant building is deemed to be a total of 10 square meters of the instant building, 70 square meters of the instant building, and 90 square meters of the instant building, and 90 square meters of the instant building were deemed to have been entirely 7 square meters of the instant building and 97 square meters of the instant building, and there were no reasonable grounds for calculating the total floor area of 10 square meters of the instant building and 97 square meters of the instant building, excluding the total floor area of the instant building from 90 square meters of the instant building and 97 square meters of the instant building, and there were no reasonable grounds for calculating the total floor area of 10 square meters of the instant building and 97 square meters of the instant building, and there were no reasonable grounds for calculating the total floor area of the instant building as 10 square meters of the instant building and 97 square meters of the instant building that were 60 square meters of the total floor area of the instant building and 500 square meters of the instant building.

D. Sub-determination

Therefore, in relation to the transfer of the instant real estate, the transfer income tax to be paid additionally by Plaintiff LA is an OO member, and the transfer income tax to be paid additionally by Plaintiff headB is an OO member, so the instant disposition by the Defendants should be revoked only for the portion exceeding the respective transfer income tax amount.

3. Conclusion

Therefore, the plaintiffs' claim of this case is justified within the above scope of recognition, and the remaining claims are dismissed as it is without merit. Since the judgment of the court of first instance is unfair with some different conclusions, it is so decided as per Disposition by accepting part of the defendants' appeal.