The remainder except for the third floor shall not be regarded as a house referred to in one house for one household under the Income Tax Act, which is subject to non-taxation of capital gains tax.

Since it has the structure function of private child-care centers, which are facilities for the elderly and children belonging to education and welfare facility group under the Building Act, and is used as private child-care centers for a considerable period of time without maintaining such structural function, it cannot be deemed that it belongs to the category of housing referred to in the subject requirement in light of the legislative intent of the non-taxation system of the capital gains tax on one house for one household.

Article 89 of the former Income Tax Act

2017Gudan9214 Revocation of Disposition of Imposing capital gains tax

○ ○

○ Head of tax office

2018.030

8.04.27

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The Defendant’s imposition of capital gains tax****** won against the Plaintiff on October 7, 2016 is revoked.

1. Details of the disposition;

(i) On March 19, 2001, with respect to the registration of transfer of ownership in the name of KimB (sale on January 10, 2001) on March 19, 201, the registration of transfer of ownership in the name of the Plaintiff (property division on September 1, 2014), YellowCC on December 4, 201, and YangD (sale on September 1, 201), the registration of transfer of ownership in the name of the Plaintiff (property division on September 1, 2014), on December 4, 2015, the ownership transfer in the name of the Plaintiff (sale on August 24, 2015) was completed in order.

B. On February 29, 2016, the Plaintiff reported and paid KRW 22,407,216 of the transfer income tax for the real value of the instant real estate as KRW 1.8 billion, the conversion acquisition value into 697,254,543, and the transfer of one house high-priced house for one household, calculated as falling under the transfer of one house high-priced house for one household.

(1) On October 4, 2016, the Defendant issued an additional notice of KRW 238,459,05 for capital gains tax for the year 2015 (= KRW 209,246,198 for principal tax + KRW 17,217,795 for additional tax + KRW 11,95,062 for additional tax for additional tax payment + KRW 11,95,830 for additional tax for additional tax payment (hereinafter referred to as “disposition of this case”) on the ground that only three floors (140.46 square meters for branch floor, KRW 9.12 square meters for 140.46 square meters for 149,459,050 for 238,459, and KRW 20550 for 200,2216,000 for 216,000 for additional tax for additional tax payment).

x) The Plaintiff appealed against the instant disposition and filed an appeal with the Tax Tribunal, but was dismissed on August 10, 2017.

Facts without dispute over the basis of recognition, Gap evidence 1-1, 2, Gap evidence 8, 10 through 13, Eul evidence 1-1, 2, 3, the purport of the whole pleadings

2. Whether the instant disposition is lawful

In the following sense, the remainder of the real estate of this case, other than three floors, cannot be seen as a house referred to in one house for one household, which is subject to non-taxation of capital gains tax under the Income Tax Act. Therefore, the plaintiff's assertion of illegality of the disposition of this case on different premise is without merit

○ The purport of not imposing income tax on the income accrued from the transfer of “one house for one household” lies in ensuring the stability of a citizen’s residential life and the freedom of his/her residence by not imposing income tax on the capital gains in certain cases where it can be deemed that transferring one house owned by one household in Korea is not transferred while temporarily residing or owning it for the purpose of earning capital gains or speculation (see Supreme Court Decision 92Nu1298, Jan. 19, 1993).

In addition, the legislative intent of Article 2 subparag. 1 of the Housing Act ("Housing") and Article 88 subparag. 7 of the current Income Tax Act ("Housing" means a building which is a structure in which a member of a household can carry on an independent residential life for a long time, and is actually used for a residential purpose regardless of whether to permit it or not. In this case, if the purpose is unclear, it shall be the purpose on the public register) and Article 14(2) of the Framework Act on National Taxes (the provisions on the calculation of tax base in tax-related Acts shall apply according to its substance regardless of the name or form of income, profit, property, act or transaction), it shall be determined by whether it constitutes "Housing" under Article 89(1)3 of the former Income Tax Act and Article 154 of the Enforcement Decree of the Income Tax Act regardless of the classification of the use of a building injured by the building, and it shall be determined at any time by the approval of a building actually used for a residential purpose (see, e.g., Supreme Court Decision 87Nu584, etc.).

As seen in the relevant Acts and subordinate statutes, ① a family childcare center is established and operated by an individual at home or at a similar place, and its use is classified as a house (housing and business facility group) rather than a facility for the elderly and children (education and welfare facility group) under the Building Act. Thus, even if an apartment constructed for residential purpose is used as a temporary home childcare center, its structure, function, or facility has a form suitable for independent residence, and at any time can be used for residential purpose without any change of purpose or structure, the building can be regarded as one house for one household subject to non-taxation of capital gains tax (see Supreme Court Decision 2004Du14960, Apr. 28, 2005). However, since a building established by a private childcare center is classified as a house under the Building Act, not a house for the elderly and children (education and welfare facility group) but a private childcare center for residential purpose, it cannot be seen as a house subject to non-taxation of capital gains tax in light of the relevant Acts and subordinate statutes.

(2) In full view of the purport of entry of 1, 2, 3, 1, 4, 100, 100, 2, 100, 2, 2, 3, 100, 100, 2,000, 3,000, 2,000, 1,000,000, 1,000,000,000 1,00,000,000,000 1,000,000,000,000,000,000,000,000 1,00,000,000,00,000,000 2,000,00,000,00,00,000,000,00,000,00,00,00,00,00,00,00.

In full view of the above facts, the third floor of the real estate of this case was transferred to a house under the conditions that it was continuously used as a house, as seen above, and all the circumstances before and after the sale of this case. However, the basement floor of this case, the first floor, and the second floor have the structure and function of a private child-care center (education and welfare facility group) under the Building Act, and should go through the procedures for the alteration of use under the Building Act for the purpose of legitimate use as a house. Thus, it cannot be viewed as a building which can be used by the owner of this case or a third party at any time as it was in a state of suitable for a residence as at the time of transfer, and residential function is maintained and managed as it was, and it cannot be viewed as a building which can be used as a house at any time because the first floor and the first floor of this case were never approved for use as a house. Although the second floor of this case was first approved for use as a house, it was only equipped with the purpose of use for education, research, welfare facilities (child-care facilities) and facilities for the purpose of this case.

3. Conclusion

Therefore, the plaintiff's claim is dismissed for lack of reason.