In the sense of return to rural area, only return to rural area residents are included in special taxation.

It is reasonable to view that the special provisions on the return of rural houses apply only to cases where a resident in an urban area who owns a general house acquires a rural house for the purpose of farming, and the fact that a resident in a rural area acquires a rural house shall not be deemed a house to return to rural communities solely on the fact that

Article 89 (Non-Taxable Transfer Income Tax)

Article 154 (Scope of One House for One Household)

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance shall be revoked. The defendant shall revoke the disposition of imposition of capital gains tax of KRW 5,025,920 against the plaintiff on November 8, 2006.

1. The issues of the instant case and the judgment of the court of first instance

The key issue of this case is that the Plaintiff, on September 26, 1988, acquired a house of 73.98 square meters and an appurtenant building of 2.2 square meters (hereinafter “the general house of this case”) on the Daejeon ○○○○-dong, Daejeon ○○-dong, 198, on September 30, 191, newly built a house of 81.75 square meters for a house of ○○○2-1 ground farm (the site area of 386 square meters, the total floor area of 109.75 square meters; hereinafter “the house of this case”), and transferred the general house of this case on October 18, 2005. The transfer of the house of this case constitutes a house of 1 household under Article 155(7)3 of the Enforcement Decree of the Income Tax Act, which provides for special cases of 1 household, and thus, the transfer of the general house of this case constitutes a house of 1 household under Article 89(1)3 of the Income Tax Act and Article 155(15(1)3)3 of the Enforcement Decree.

The court of first instance, which provides for the special case of one house for one household, applies only to the case where a resident of an urban area who owns a general house acquires a house in an agricultural or fishing village for the purpose of farming, and to the case where a resident in an agricultural or fishing village acquires a general house without a change in the residential area, the special case can not be applied only to the case where the resident acquired the house in an agricultural or fishing village without a change in the residential area. However, it is recognized that the plaintiff continued to be engaged in farming in the vicinity of the above place of birth after being born at the ○○○○○○○○○○○○○○6 on May 10, 1946, and there is no evidence to recognize that the plaintiff resided in the general house of this case or resided in the urban area. Thus, it cannot be deemed that the house acquired later by the plaintiff is a house of return to farming as defined in Article 155 (7) 3 of the Enforcement Decree of the Income Tax Act, and therefore, the disposition imposing capital gains

According to the results of the pleadings, the interpretation of the court of first instance on the Income Tax Act and the provisions of the Enforcement Decree thereof stipulating special cases for one house per household, and the judgment of the court of first instance that the Plaintiff’s acquisition of the instant farm house does not constitute the acquisition of the house of return to farming under the above Act and subordinate statutes

2. Quotation and conclusion of the judgment of the first instance;

Therefore, the reasoning for the use of this case is the same as the column for the judgment of the court of first instance, and thus, it is acceptable in accordance with Article 8(2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act.

Therefore, the plaintiff's claim of this case shall be dismissed as it is without merit, and the judgment of the court of first instance shall be accepted as just and reasonable. Thus, the plaintiff's appeal shall be dismissed and it is so decided as per Disposition.

[Electricju District Court 2007Guhap2385 (Law No. 14, 2008)]

1. The plaintiff's claim is dismissed.

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

The Defendant’s imposition of capital gains tax of KRW 5,025,920 against the Plaintiff on November 8, 2006 shall be revoked.

1. Circumstances of dispositions;

A. On November 30, 198, the Plaintiff acquired a house of 130-2 ○○-dong, Daejeon, 130-2 above ground, 73.98 square meters and an appurtenant building of 2.2 square meters (hereinafter “general house of this case”). On September 30, 1991, the Plaintiff newly constructed a house of 00 ○○○-ri, ○○○○, ○○, ○○, ○○, ○○, ○○, ○○, ○○, ○○, ○○, ○○, ○○, 109.75 square meters, and hereinafter “instant house”). The registration of ownership is completed.

B. On October 18, 2005, the Plaintiff transferred the instant ordinary house to Nonparty ○○. Accordingly, the Defendant rendered the instant disposition imposing capital gains tax of KRW 5,024,920 on the Plaintiff on November 8, 2006.

[Ground of recognition] Facts without dispute, Gap evidence 1-1, Gap evidence 2, Eul evidence 3, Gap evidence 12-18 (including branch numbers), Eul evidence 3, and the purport of the whole side villages

2. Whether the disposition of this case is legitimate

A. The plaintiff's assertion

The plaintiff acquired the general house of this case on September 26, 198, and newly built and resided in the house of this case for the purpose of farming on September 30, 1991, and transferred the general house of this case on October 18, 2005. The house of this case does not constitute a high-class house with a size of 81.75 square meters located in ○○○○○○, ○○○, one of his permanent domicile, and the land area is not more than 386 square meters, and the plaintiff owns farmland of 14,124 square meters at the location from the time of acquisition of the house of this case and engages in farming. Thus, the house of this case constitutes a house of farming to the farm under Article 155 (7) 3 of the Enforcement Decree of the Income Tax Act, which provides for the special case of the house of one household, and thus, even if the plaintiff owned the house of this case at the time of transfer of the general house of this case, the transfer of the general house of this case is illegal under Article 89 (1) 34) 1.

(b) Related statutes;

Article 89 (Non-Taxable Transfer Income Tax)

Article 154 (Scope of One House for One Household)

C. Determination

(1) According to Article 89(1)3 of the Income Tax Act (amended by Act No. 7837 of Dec. 31, 2005; hereinafter the same shall apply) and Article 154(1) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 19254 of Dec. 31, 2005; hereinafter the same shall apply), where a resident and his/her spouse possess one house in Korea as of the date of transfer, one household comprised of both the family members who live together with the same resident and his/her spouse at the same address or same place of residence (hereinafter referred to as “one household”) has three years or more, income tax shall not be imposed on the income accruing from the transfer of the house and the land appurtenant thereto.

In addition, Article 155 (7) of the Enforcement Decree of the Seoul Metropolitan Area Readjustment Planning Act provides that where a household possessing one house in Eup (excluding an area within the urban area) or Myeon area among the areas other than the Seoul Metropolitan area under Article 2 (1) of the Seoul Metropolitan Area Readjustment Planning Act and one house in agricultural and fishing village located in a Myeon area respectively in Korea transfers the ordinary house, it shall be deemed that it owns one house in Korea and does not impose capital gains tax by applying the Gu affairs under Article 154 (1). Article 155 (12) of the Enforcement Decree of the same Decree provides that the house acquired for farming or fishing purposes shall be included in the above house in the house of farming or fishing, but Article 155 (12) of the Enforcement Decree of the same Act provides that where the owner of the house of return to farming fails to engage in farming or fishing continuously for three years or longer from the date of return to farming (referring to the date on which a resident registration to farming or fishing village

(2) Meanwhile, under Article 155(7)3 of the Income Tax Act, the Enforcement Decree only prescribes the requirements for residence in one house for one household due to a house of return to rural communities under Article 155(12) of the same Act, and does not stipulate the title only in cases where an urban area residing therein acquires a house of return to rural communities for the purpose of farming purposes. However, the purpose of the special provisions is to promote exchanges between urban and rural communities through transfer of the general house by failing to impose capital gains tax on the transfer of the house in cases where an urban area, which owns the general house, acquires a house of return to rural communities for the purpose of balanced development of the national land, and thereby, Article 155(11) of the Enforcement Decree of the Income Tax Act provides that "the main sentence of paragraph (7) shall apply to only one general house transferred after the return to rural communities, and the special provisions of the special provisions concerning the transfer of the general house shall not apply to cases where a person purchases a house of return to rural communities without changing the ownership of the house of return to rural communities and fishing villages."

(3) In the instant case, there is no evidence to prove that the Plaintiff resided in the instant ordinary house or resided in the urban area, and instead, comprehensively taking account of the overall purport of the arguments in the evidence Nos. 10 and 11, the Plaintiff’s assertion that the Plaintiff had no change in his domicile on July 31, 1993, and even if the Plaintiff, who continued residing in the rural area, acquired the instant general house after acquiring it for the purpose of farming without changing the residential area, the Plaintiff’s assertion that the Plaintiff had no reason to believe that he had been engaged in the instant residential house for the purpose of farming.

Therefore, the defendant's disposition of this case is legitimate because the plaintiff's transfer of the general house of this case does not constitute a transfer of one house of one household which is the object of non-taxation of capital gains tax under the Income Tax Act.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so ordered as per Disposition.