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(영문) 창원지방법원 2019.01.16 2018구합50244
양도소득세부과처분취소
Text

1. The Defendant’s disposition of imposition of capital gains tax of KRW 163,543,130 to the Plaintiff on June 1, 2017 shall be revoked.

2...

Reasons

1. Details of the disposition;

A. On October 25, 2002, the Plaintiff acquired a building of 260 square meters (hereinafter “instant land”) and its ground (hereinafter “instant building”) in Seongbuk-gu, Seonam-gu, Sungnam-si, and transferred the instant land and building in KRW 2,175,00,000 to C, etc. on June 12, 2015.

B. Meanwhile, according to Article 89(1)3(a) of the Income Tax Act, and Article 154(3) of the Enforcement Decree of the Income Tax Act, in determining one house for one household when calculating real estate transfer income, if a single building consists of both a house and a part other than a house, if the total floor area of the house exceeds the total floor area of the part other than a house, the entire building shall be considered as one house

C. The Plaintiff deemed 129.92 square meters and 129.84 square meters in total with 129.92 square meters in the 2nd floor of the instant building as a house, and deemed 76.86 square meters in total with 129.45 square meters in the 2nd floor and 129.31 square meters in total with 129.45 square meters in the 2nd floor of the instant building as part other than a house, and deemed that the area of the housing is larger than that of the part other than a house (see, e.g., Supreme Court Decisions 87Nu471, Sept. 8, 1987; 87Nu471, Sept. 8, 1987). The Plaintiff reported the entire building as a house, and reported and paid capital gains tax on the transfer of the instant land and the instant building as KRW 41,101,959, Apr. 9, 195.

However, as a result of the director of the Central Regional Tax Office conducted an audit on the Defendant around October 2016, he determined that the part used as a house among the instant building is not more than 129.92 square meters with three floors, and that the remaining 12 floors and the part in dispute of the instant case is not a house, and that the total area of 336.23 square meters with the size of the remaining 12 floors and the part in dispute of the instant case is not a house, and thus, it cannot be deemed that the entire building of this case is a house pursuant to

E. Accordingly, the Defendant raised objection to the Plaintiff on January 25, 2017 according to the aforementioned findings.

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