early 2012 Heavy0860 ( October 29, 2012)

Since it is difficult to regard an unauthorized building as a house, and it seems that it has not been residing for at least two years, it is difficult to apply one house non-taxation provision for one household.

In the judgment of the court, it is difficult to recognize that the building constitutes a permanent residence house located on the issue land because it does not recognize the building without permission as an independent building in the judgment of the court. Since the applicant did not have resided in the place where the issue without permission is located on the issue of resident registration, the claimant's assertion that the applicant resided in

Article 89 of the Income Tax Act

2013 old-gu 10056 Revocation of Disposition of Demanding Refund

Gangwon A

BB Director of the Tax Office

July 24, 2013

September 4, 2013

1. The plaintiff's claim is dismissed.

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

The defendant's rejection disposition against the plaintiff on July 21, 201 shall be revoked.

1. Details of the disposition;

A. On December 29, 2001, the Plaintiff was donated 86-209 square meters of OO-dong O-dong O-dong O-dong O-dong 686-209 square meters (hereinafter referred to as "the original land of this case"), and on December 13, 2006, 686-209 square meters and 56 square meters (hereinafter referred to as "the land of this case") were divided into 686-243 square meters and 8.4 square meters of the land without permission (hereinafter referred to as "the building of this case") and 8.4 square meters of the land of this case (hereinafter referred to as "the land of this case").

B. On May 15, 2008, the Plaintiff transferred each of the instant real estate to the DDR (hereinafter referred to as the “DDR”) and paid the capital gains tax amount after filing a report on the tax base of capital gains tax in relation to the transfer of each of the instant real estate on July 31, 2008.

C. On May 23, 2011, the Plaintiff filed a claim against the Defendant for correction to correct the tax base and tax amount on the ground that “income from the transfer of the instant unauthorized building among the income from the transfer of each of the instant real estate and the income from the transfer of 42.2 square meters (8.44 square metersx5 square meters) equivalent to five times the fixed area of the instant unauthorized building among the instant land, constitutes income from the transfer of one house for one household, which constitutes non-taxable capital gains,” and to refund the capital gains tax already reported and paid.

D. On July 21, 2011, the Defendant rejected the Plaintiff’s request for correction on the ground that “this case’s unauthorized building cannot be deemed a house, and the Plaintiff does not meet the requirements for non-taxation on one house for one household since the Plaintiff did not reside in the instant unauthorized building.” (hereinafter “instant refusal disposition”).

E. On January 13, 2012, the Plaintiff filed an objection against the instant refusal disposition and filed an appeal with the Tax Tribunal, but the Tax Tribunal dismissed the Plaintiff’s appeal on October 29, 2012.

Facts without dispute over the basis of recognition, and entry in Gap evidence 1, 2, 1, 4-1, and 1-3 of Eul evidence 1.

2. Whether the rejection disposition of this case is legitimate

A. The plaintiff's assertion

Despite the fact that the non-permitted building of this case constitutes a house, and during each period from December 29, 2001 to February 20, 2004, and from November 18, 2005 to December 8, 2005, the defendant actually resided in the non-permitted building of this case, the disposition of refusal of this case was made on different premise, and the defendant's disposition of refusal of this case against the plaintiff is unlawful.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

(c) Fact of recognition;

1) 원고의 부(父)인 강CC은 1981년경 OO시 OO구 OO동 175-7 대 182㎡(위 토지는 2006. 12. 13. 같은 동 175-7 대 33㎡와 같은 동 175-10 대 94㎡， 그리고 같은 동 175-11 대 55㎡로 분할되었다) 및 그 지상 주택(이하 '이 사건 주택'이라고 한다)을 매수하여 취득한 후， 그 무렵 위 OO시 OO구 OO동 175-10 대 94㎡와 그 인접 토지인 대한민국 소유의 이 사건 원래 토지 지상에 이 사건 무허가건물을 신축하여 이 사건 원래 토지를 점용하다가， 1990. 12. 28. 대한민국으로부터 이 사건 원래 토지를 매 수하여 취득하였다.

2) The instant housing and the instant unauthorized building were connected to one another, and were surrounded by one fence, and the gate used as the entrance of the instant unauthorized building was located on the original ground of the instant land.

3) On August 30, 2001, the instant association obtained authorization for the purpose of rebuilding projects, such as detached houses and tenement houses located on the land outside 178 and 174 OO-dong O-dong O-dong, and Gangnam donated the instant land and the instant building without permission to the Plaintiff on December 29, 2001.

4) On August 2006, Gangnam installed steel fences on the original land of this case and on the ground of 175-10 square meters, OO-dong 175-10, OO-dong 174 square meters to separate the instant housing and the instant unauthorized building.

5) On October 26, 2006, the instant association obtained authorization from the head of the Seoul Special Metropolitan CityOO head, and the Plaintiff was excluded from its members on the ground that the Plaintiff did not own an independent building in the business zone under the above management and disposition plan.

6) On May 15, 2008, at the time when the Plaintiff transferred the instant land and the instant unauthorized building to the instant association, the instant building was used as a warehouse, including the strings, boilers, and singkes, which were seen to have been used previously, but the instant building was used as a warehouse, such as stuffing and steel products.

Facts without dispute over recognition, Gap evidence 2-1 to 3, Gap evidence 5-1, 5-2, Gap evidence 6-2, and Eul evidence 3, the whole purport of the arguments, and the whole purport of the arguments.

D. Determination

1) In full view of the following circumstances, the above facts revealed that Gap evidence 10-2, Eul evidence 10-2, and Eul evidence 2-1, and Eul evidence 3 can see the overall purport of the pleadings, it is difficult to view the present unauthorized building as a house as an independent building, and it is difficult to view that the plaintiff satisfies the residential requirements for the application of non-taxation for one house for one household as stipulated in the relevant statutes.

① Under the administrative litigation (Seoul Administrative Court 2007Guhap3657), the Plaintiff filed against the instant association on January 24, 2007 for the cancellation of the management and disposal plan of the instant association, excluding himself/herself from its members, and the Seoul Administrative Court rendered on May 30, 2007, “The instant unauthorized Building and the instant unauthorized Building are connected each other, surrounded by one fence, and are using the same mas and entrances,” and the instant unauthorized Building are used as an independent building of 8.44 square meters in size and currently used as a warehouse, and the strongCC made donation to the Plaintiff, who is the Plaintiff, the Plaintiff, at the time the instant association obtained authorization for the establishment, on the ground that the instant association is merely merely a constituent part of the instant without permission, and thus, are not independent of the economic utility of the instant building, and thus becomes final and conclusive through the final judgment of the appellate court and the judgment of the court below 207.”

② During the period of possession of the instant unauthorized building, there is no objective and specific data to recognize that the Plaintiff actually resided in the instant unauthorized building for at least one year from December 29, 2001 to December 20, 2004, and from November 18, 2005 to December 8, 2005, there is no objective and specific data to recognize that the Plaintiff actually resided in the instant unauthorized building for at least one year.

2) Therefore, the Plaintiff’s aforementioned assertion on a different premise is without merit.

3. Conclusion

The plaintiff's claim of this case is dismissed as there is no reasonable ground.