Seocho 2014west 1629 (2014.09)

The instant officetel is deemed residential and is not subject to non-taxation for one household.

It is reasonable to view the main purpose of the instant officetel as a residence under the income tax law, and it cannot be deemed that the instant disposition was made at an interest rate, class, or contrary to the principle of fair taxation solely on the ground that the Plaintiff paid property tax to a local government equivalent to ten years.

2014Gudan1437 Disposition of revoking capital gains tax, etc.

AAA

Head of Guro Tax Office

December 18, 2014

January 8, 2015

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 KRW 00,00,000 on December 5, 2013 against the Plaintiff on December 5, 2013 is revoked.

1. Details of disposition;

가. 원고는 200X. 0. 0. 고양시 QQ구 WW동 EE마을 0000동 000호(이하 '이사건 아파트')를 취득하여 201X. 00. 0. 양도하고도 양도소득세 신고・납부를 하지 않았다.

나. 피고는 원고가 이 사건 아파트 양도 당시 소유하고 있던 고양시 QQ구 RR동 0000빌 제000호 39.2㎡(이하 '이 사건 오피스텔')가 주거용으로 사용되었음을 이유로 1세대 2주택 중 하나로 보아 2013. 12. 5. 양도가액을 000,000,000원, 환산취득가액을 000,000,000원으로 한 2012년 귀속 양도소득세 00,000,000원(가산세 포함)을 결정・고지(이하 '이 사건 처분')하였다.

C. On October 0, 2010, the Plaintiff rejected the instant disposition, and the Tax Tribunal rendered a decision to re-examine whether the household possessing one house under the Enforcement Decree of the Income Tax Act on October 0, 201 X does not have room to fall under the case of temporary two houses. As a result of re-audit on October 0, 2010, the Defendant notified that the instant disposition was maintained, after deeming that the instant officetel was continuously used for residence.

Facts that there is no dispute over recognition, Gap No. 1, 2, Eul No. 1, and the purport of the whole pleadings.

2. Whether the disposition is lawful;

A. The plaintiff's assertion

(1) 고양시 QQ구청은 원고가 이 사건 오피스텔을 취득한 200X년 이후 위 오피스텔이 업무용 자산임을 전제로 매년 재산세를 부과하였을 뿐 10년이 넘도록 이를 주거용으로 보는지 여부에 대하여 아무런 안내도 한 적이 없고, 원고 또한 위 오피스텔을 업무용으로 임대한 이상 임차인들이 실제 이를 업무용으로 사용하는지 여부를 관리ㆍ감독할 수 없는 것이므로, 이 사건 오피스텔은 업무용 자산으로서 1세대 1주택 비과세 적용에 방해가 되지 않는다고 봐야 한다. 이에 반하는 이 사건 처분은 이율배반적이고 공평과세의 원칙에 어긋나는 부당한 것이므로 취소되어야 한다.

(2) Even if it does not constitute one house non-taxation requirement for one household, it is unlawful for the Plaintiff to calculate capital gains tax by using the conversion price not exceeding KRW 00,000,000 as the actual transaction price that the Plaintiff acquired the instant apartment as the acquisition price.

B. Determination

(1) Relevant statutes

"One house for one household prescribed by Presidential Decree" in Article 89 (1) of the Income Tax Act provides that "one house for one household prescribed by Presidential Decree shall be exempted from taxation on income accruing from the transfer of one house for one household, and "one house for one household" in Article 154 (1) of the Enforcement Decree of the Income Tax Act provides that where a resident and his/her spouse together with the family members living together with the same address or same place of residence, as of the date of transfer, one household possessing one house in Korea as of the date of transfer. However, in cases where a transferor of another building owns another building, whether the other building constitutes a house under the income tax-related Acts and subordinate statutes shall be determined by whether the other building is actually used for a residence regardless of the use classification of the building injury. Even if a temporary use is in a state suitable for a residence as its structure, function, or facility is in a state suitable for a residence, and the residential function is maintained and managed as it is, it shall be deemed a house in the case of a building which can be used as a house at any time (see, e.g., Supreme Court Decision 2004Du17.

(2) Facts of recognition

If each of the above evidences is added to the evidence Nos. 2 through 6, the following facts are recognized:

(A) The Plaintiff acquired the instant officetel on October 0, 200 X and paid the property tax every year after 200 X, but did not have filed a separate business registration or a report of value-added tax. On October 0, 2010, the Plaintiff registered the business of the real estate leasing business on October 00, 201 when acquiring the instant officetel heading XX3 and XX8.

(B) Although the instant officetel is a neighborhood living facility and business facility on the registry, there was a record that all eight tenants, such as ParkA, LeeB, and JeongCC, have been transferred to the instant officetel on October 0, 200, and among which, on October 00, 200, only the BB, who was transferred to the said officetel on October 00, 201, was registered as a business operator of the wholesale and retail business with its place of business on October 00, 200, and the BB stated that, while engaging in the business of visiting the instant officetel through the art learning site in the course of the tax investigation, it was not possible to use the instant officetel, laundry, etc. as a real residence and to reside in any other place.

(C) After the disposition of the instant case, the local business trip results by the Tax Tribunal’s decision to conduct a reinvestigation, the instant officetel 1 and the second floor are commercial buildings, and the third and upper floors are mixed with the business and residence, and most of them were used for residential purposes other than the business offices or small-scale business offices, and the management office confirmed that public charges are imposed according to the number of household members as residential purposes when the resident registration is confirmed due to the possibility of heating for each unit.

(D) The sales contract of October 00, 200, which was prepared by the Plaintiff at the time of acquiring the apartment of this case, was concluded between the Plaintiff and the seller KimF, with the sales price of KRW 00,000,000, and the down payment of KRW 000,000,000, at the time of the contract, was written to receive each other on October 0, 2000, but the remainder of KRW 00,000,00, at the time of the contract, was written to receive each other. However, in the ordinary sales contract, all of the matters concerning the cancellation of the contract, damages, etc. entered in the contract as the content of the contract, and it is limited to those corresponding to the Civil Act and the real estate sales practice under the contract at the present time. The signature and seal of the broker at the bottom of the contract

(3) Determination

(A) First of all, the taxpayer bears the burden of proving that one household meets the requirements for non-taxation, i.e., the following circumstances based on each of the above facts. i.e., (i) the details of the business registration or the report of value-added tax on the instant officetel do not exist; (ii) the lessee who rents the said officetel appears to have completed a move-in report on the resident registration after October 0, 200, and used it for residential purposes, and there is no circumstance to presume that he had an intention to use it as the office for business purposes; and (iii) the BB, having registered the instant officetel as its place of business, stated that it was actually used for residential purposes, with the exception of the storage of art teaching materials in the said officetel at the place of business; and (iii) the Plaintiff’s local business trip on the basis of the structure and functions of the instant officetel or the details of imposition of public charges on the Defendant’s local government, which was operated in an independent form, and thus, cannot be seen as being contrary to the principle of fair taxation on the Plaintiff’s residential property tax.

(B) Furthermore, inasmuch as the sales contract on the acquisition of an apartment in this case is difficult to have a good faith in light of the form and content thereof, and there is no objective data such as financial transaction details that can be seen as the actual transaction price of the apartment in this case as KRW 00,000,000, the disposition in this case, which calculated the transfer margin with the conversion acquisition price, is just and without merit. The Plaintiff’s assertion on this part is without merit.

3. Conclusion

The claim is dismissed for lack of reason.