Appellate Court 2014west0197 (Law No. 1284, 2014)

The instant housing does not constitute reduction or exemption for five or more long-term rental houses.

The instant house cannot be seen as a house independent from other parts due to its structural structure or use to the extent that it would be the object of independent transaction under the social concept, and it does not meet the requirements for reduction and exemption, as it does not fall under the requirements for reduction and exemption.

2014 old-gu 10076 disposition rejecting capital gains tax rectification

The AA

BB Director of the Tax Office

December 10, 2014

February 4, 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 disposition rejecting to rectify capital gains tax issued on July 5, 2013 is revoked.

1. Details of the disposition;

A. On November 4, 1986, the Plaintiff’s house of 000-0 00 east 174.5 m2 and its ground

On November 3, 1986, each registration of ownership transfer was completed on the ground of sale on November 3, 1986 with respect to (the details of the official injury indication are as follows: hereinafter referred to as the "house of this case").

On December 13, 2012, the Plaintiff transferred the said land and the instant housing to the Kim Z in 0 billion won. On February 28, 2013, the Plaintiff reported and paid KRW 00,000,000 to the Defendant for the instant housing.

【Public Injury Indication】

○ Details of the building on the certified copy of the register

A house with 2 floors above the wall-to-slock slockp slocks

83.03m2 per floor

2nd floor 83.82 square meters

83.03 square meters per underground floor

(B) An underground room in place)

○ Indication on the building ledger

- Date of November 12, 1985

- Total floor area of 249.88 square meters

- For use: 1-Ground, 1-house, 2-house

B. On April 22, 2013, the Plaintiff asserted that the instant housing constituted reduction or exemption for “five or more long-term rental houses” under Article 97(1)2 of the Restriction of Special Taxation Act, and filed a claim for correction to refund KRW 000,000,000.

On July 5, 2013, the Defendant notified the Plaintiff that “the instant house is not an apartment, but an apartment, and it does not constitute a house that was occupied as of January 1, 1986, and that the Plaintiff does not constitute a rental house stipulated in Article 97 of the Restriction of Special Taxation Act in light of the fact that the Plaintiff directly resided in the instant house,” and that the Defendant refused to request for correction (hereinafter “instant disposition”).

Facts without dispute over the basis of recognition, Gap evidence 1, Eul evidence 2 (including paper numbers; hereinafter the same shall apply)

2. Whether the disposition is lawful;

A. The plaintiff's assertion

As delineated below, the instant house constitutes a reduction requirement under Article 97 of the Restriction of Special Taxation Act, and thus, the Defendant’s disposition of this case is unlawful.

1) The Plaintiff acquired the instant house and reconstructed it into a multi-family house (second floor (second floor), 4 households, 2 households in the first floor, and 1 household in the second floor) around 1988 for the purpose of lease income (so-called remodeling).

The plaintiff and the family have resided in the second floor and leased the other six households (in the underground 4 households, 1st floor, 2 households) to another person. Therefore, the instant house is a multi-family house in which the seven households reside, and constitutes multi-family housing under tax law.

2) 이 사건 주택의 신축일(1985. 11. 12.)부터 법상 기준일(1986. 1. 1.)까지는 48일에불과한데, 전 소유자인 김QQ은 다른 곳에서 거주하였고, 또 당시 비수기인 겨울인 점을 고려하면 위 기준일 전에 이 사건 주택에 임차인이 입주하였다고 볼 수 없다.

3) The Plaintiff leased the underground floor and the first floor 6 households to others for not less than 10 years.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Relevant legal principles

According to the provisions of Article 97 of the Restriction of Special Taxation Act (hereinafter referred to as the "Act") and Article 97 of the Enforcement Decree of the Act delegated by the Act, "resident who leases more than five rental houses" shall be a newly constructed apartment house on or before December 31, 1985 that had not been occupied as of January 1, 1986 and transfers it after lease for not less than 5 years after commencement of lease on or before December 31, 2000, the tax amount of 50% of the transfer income tax on the income accruing from the transfer of the house shall be reduced and exempted, and in the case of rental houses leased for not less than 10 years, the transfer income tax shall be exempted. In other words, in order to meet the requirements for reduction and exemption under the above provisions, the subject of the act shall be a resident who leases more than 5 rental houses, and the object shall be a newly constructed apartment house on or before December 31, 198, which has never been occupied as of January 1, 1986.

In this context, “multi-family housing” is a unique concept under the tax law, not necessarily bound by the provisions of the relevant laws and regulations, but can be determined in light of its legislative intent from an independent standpoint. Therefore, if each household that jointly uses all or some of the walls, corridors, stairs, and other facilities of a building site and building becomes an independent residential life within one building, and is an apartment house in substance, it is reasonable to view it as a multi-family housing even if it is registered as an independent house under the building management ledger with a building permit or the owner of building has made a registration of initial ownership in the future (see, e.g., Supreme Court en banc Decision 92Nu15994, Aug. 24, 1993). Furthermore, if each household who jointly uses all or some of the walls, corridors, stairs, and other facilities of the building site and building becomes an independent residential life within the same building, it is necessary to clearly distinguish the scope of ownership from other parts that can be used as an independent residential property (see, e.g., Supreme Court Decision 97Nu954, supra).

2) Whether the instant housing constitutes an object stipulated in the said reduction or exemption requirements

A) First, it is reasonable to view that the meaning of a apartment house newly built on or before December 31, 1985, which had not been occupied as of January 1, 1986, is limited to the case of an apartment house at the time of new construction in light of the legislative intent and text of the laws and regulations as seen below, systematic interpretation with other provisions, and the request for no taxation without law.

① In light of the principle of no taxation without the law, or the requirements for tax exemption or tax exemption, the interpretation of tax laws and regulations shall be interpreted as the text of the law, barring any special circumstance, and it shall not be permitted to expand or analogically interpret with the benefit of taxpayers without any reasonable reason. In particular, it accords with the principle of fair taxation to strictly interpret the provisions that can be seen as clearly preferential provisions among the requirements for tax exemption or exemption (see, e.g., Supreme Court Decisions 2003Du7392, May 28, 2004; 2005Da19163, May 25, 2006; 2006Du16182, May 10, 2007).

② The Income Tax Act defines “transfer of assets by means of sale, exchange, investment in kind in a corporation, etc., regardless of the registration or enrollment of assets,” and lists income generated from the transfer of land or buildings as objects of taxation of capital gains tax. Therefore, income from the transfer of the instant housing, etc. is naturally subject to taxation of capital gains tax: Provided, That the provisions for capital gains tax reduction or exemption for long-term rental houses under the Restriction of Special Taxation Act are set forth according to the policy goal of promoting the stabilization of living of low-income people without houses by promoting the long-term construction of small rental houses.

③ In comparison with Article 97(1)1 of the Act, subparagraph 2 explicitly distinguish between the house and the apartment house that were newly built.

Furthermore, even if "a house which has not been occupied as of January 1, 1986 as it is," it is interpreted as "a house from the time of new construction, and has never been occupied as of January 1, 1986," and it does not include "a house newly built before December 31, 1985, which has become an apartment house" at the time of transfer.

B) In light of the above legal principles, in light of the following facts acknowledged by comprehensively taking account of the descriptions in the health room, Gap evidence 1-1, 2, and 3 as well as the overall purport of pleadings, the instant house cannot be deemed as a house separate from other parts due to its structural structure or use to the extent that it would be the object of independent transaction under the social concept, i.e., a multi-family house newly constructed before December 31, 1985, which is the basis for the instant house.

① 이 사건 주택은 김QQ이 신축하여 1985. 11. 12. 사용승인을 받았고, 당시의 건축물대장상 내역은 현재와 동일한 단독주택에 해당한다.

② 원고는 1986. 11. 4. 김QQ으로부터 이 사건 주택을 매수하여 취득하였고, 이후 이 사건 주택을 공동주택 즉, 구조상이나 이용상 여러 세대가 독립하여 생활할 수 있는 형태로 변경하였다는 내용은 건축물대장에 기재된 바 없다.

③ The Plaintiff asserts that he leased the instant house to another person after remodelling the instant house for the purpose of leasing income in around 1988. Even if the claim is accepted, the time when several households were changed to a multi-family housing suitable for their independent living, and the time of changing the instant house into a multi-family housing suitable for their independent living, around 19

3) If so, without examining the remainder of the Plaintiff’s remaining arguments, the instant house does not fall under the reduction or exemption provisions under Article 97(1) of the Restriction of Special Taxation Act, and accordingly, the Defendant’s disposition from the same purport is lawful.

4. Conclusion

Ultimately, the plaintiff's claim of this case is without merit, and it is so decided as per Disposition.