Plaintiff (Attorney Jeon Sung-sung et al., Counsel for the plaintiff-appellant)

Head of Geumcheon Tax Office

May 1, 2014

1. The Defendant’s imposition of capital gains tax and additional tax 17,162,910 won on the Plaintiff on July 16, 2013 shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Details of disposition;

A. On September 28, 198, the Plaintiff acquired a 181.22 square meters (1.9 square meters in the area of 1st floor, 2nd floor, 89.32 square meters in the area of 2nd floor; hereinafter “instant building”) of a combined building for the concurrent use of the site and the second floor thereof in Seoul Special Metropolitan City, Gwanak-gu, and its second floor on its ground, and transferred the building to the Nonparty, etc. on February 21, 2011, in KRW 1,600,000. On August 5, 2011, the Plaintiff reported and paid the transfer income tax of KRW 900,000,000 in the aggregate of the instant building by applying the tax exemption of one house for one household, deeming the entire building as a house, and by applying the conversion acquisition value of the portion exceeding KRW 675,978,301, which is the base amount for one household.

B. As a result of pre-assessment review, the Defendant recognized the application of one household tax exemption on the instant building, etc., but imposed a disposition imposing a total of KRW 17,162,910 on capital gains tax for the year 201, including penalty tax 5,026,545 (hereinafter “instant disposition”), on the ground that the first floor of the instant building was used as a commercial building, and the second floor was used as a house, and on July 16, 2013, the first floor of the instant building was calculated as the standard market price, and the second floor was converted acquisition value by distributing the individual housing price to the standard market price.

C. On September 27, 2013, the Plaintiff filed an appeal against the appeal, but was dismissed by the Tax Tribunal on December 30, 2013.

[Ground of recognition] The fact that there is no dispute, Gap Nos. 1, 2, 5 (including each number), Eul Nos. 1, 2, and 1, 2, the purport of the whole pleading

2. Whether the disposition is lawful;

Article 89 (1) 3 of the Income Tax Act and Article 156 (1) of the Enforcement Decree of the Income Tax Act provide that capital gains tax shall not be imposed on the income accruing from the transfer of one house for one household prescribed by the Presidential Decree except for expensive houses exceeding 900,000,000 won. According to Article 154 (3) of the Enforcement Decree of the Income Tax Act, where a single building is combined with parts other than a house and a building is located on the land other than a house, the entire house shall be deemed a house, and if the total floor area of the house is smaller than or equal to the total floor area of the part other than a house, other parts than a house shall not

However, since the actual area of the building of this case is more than that of the house, unlike the public register, such as the copy of the register, the defendant is also the defendant. Therefore, the disposition of this case premised on the premise that the area of the building is smaller than that of the non-housing area, the disposition of this case is unlawful (the defendant is merely the determination of the scope of non-housing non-taxation transfer income of this household under Article 154 (3) of the Enforcement Decree of the above Act, and it is not a provision on the calculation of specific transfer margin. However, in accordance with the above Enforcement Decree, the calculation of transfer margin by applying the standard market price, such as the tax base and the individual housing price, etc. after considering the whole building of this case as the house, is excluded from the application of the above provision itself, and the above building can be separated into the non-housing area

3. Conclusion

The plaintiff's claim shall be accepted with due reason.

Judges Noh Jeong-Gyeong