Whether capital gains tax constitutes one house for one household subject to non-taxation;

Since the period in which one has resided in the Gu house has more than five years, the area ratio of the part out of the new building exceeds the residential period of three years corresponding to one house for one household, so it shall be subject to non-taxation for one household.

The contents of the decision shall be the same as attached.

I did not prepare.

I did not prepare.

Of the imposition of capital gains tax of KRW 24,493,90 as of February 16, 1992 against the Plaintiff, and of KRW 10,379,750 as of February 16, 1993 as well as capital gains tax of KRW 4,898,830 as of February 16, 1993 and KRW 2,75,950 as of KRW 19,121,480 as of the total amount of capital gains tax, and KRW 3,824,310 as of KRW 19,121,48 as of February 16, 1993, the part exceeding the total amount of capital gains tax of KRW 19,121,480 as well as the defense tax of KRW 3,824,31

원고가 1983. 4. 6. ㅇㅇ시 ㅇㅇ구 ㅇㅇ동 ㅇㅇ번지 대 175제곱미터 및 그 지상의 2층 주택 127.53제곱미터(이하 이 사건 주택이라 한다)를 취득하여 거주하다가 위 주택이 노후되어 1988. 4. 20. 위 주택을 철거하고 1989. 1. 27. 위 지상에 주상복합건물 366.62제곱미터(근린시설 193.25제곱미터, 주택 82.8제곱미터, 보일러실 및 창고 90.57제곱미터)를 신축하여 위 건물 중 주택부분에 거주하여 오던 중, 1990. 5. 1. 위 건물 내의 근린시설 중 82.8제곱미터를 주택으로 용도변경한 후, 같은 해 6. 29. 위 토지 및 건물 전체를 타에 양도한 사실에 대하여, 피고는 위 신축건물에서의 거주기간이 양도소득세의 비과세대상이 되는 3년 미만이 되므로 소득세법 제5조제6호자목, 같은 법 시행령 제15조제1항제2호 소정의 1세대 1주택에 해당되지 아니한다는 이유로 1992. 2. 16.자로 원고에 대하여 위 토지 및 건물의 양도로 인한 양도소득세 금24,493,990원, 방위세 금4,898,830원의 부과처분을 한 후, 위 세액산출에 착오가 있었다고 하여 다시 1993. 2. 16.자로 양도소득세 금10,379,750원 및 방위세 금2,075,950원을 추가로 부과처분함으로써 양도소득세 합계 금34,873,740원 및 방위세 합계 금6,974,780원의 부과처분을 한 사실은 당사자 사이에 다툼이 없다.

Therefore, the plaintiff asserts that when calculating the residential period corresponding to the requirements of 1st household in the case of removing old house and constructing new house, the living period of new house should be aggregated. Thus, although the plaintiff totaled the residential period of new house for more than 6 years, the defendant is less than 3 years subject to non-taxation of capital gains tax on the transfer of land and building of this case, which is illegal because the defendant imposed capital gains tax on the transfer of land and building of this case.

However, according to the provisions of subparagraph 6 (i) of Article 5 of the Income Tax Act, one house for one household prescribed by the Presidential Decree (excluding the high-class new house prescribed by the Presidential Decree) and the appurtenant land less than the size calculated by multiplying the size of the land on which the building is constructed by the rate prescribed by the Presidential Decree (Article 15 (9) of the Enforcement Decree of the Income Tax Act shall be five times for the land within the urban planning area) and Article 15 (1) of the Enforcement Decree of the Income Tax Act (amended by the Presidential Decree No. 12767 of Aug. 1, 198, and it shall be deemed that the new house for one household which is exempt from capital gains tax is located for 6 years or more, and if the plaintiff resides in the new house for 9 years or more, it shall be deemed that the total size of the new house is 9 years or more for the first six new house and that the new house is not for 9 years or more for the first six new house to be located.

In this case, since the period in which the Plaintiff resided in the old house has already exceeded five years, the housing portion out of the said new building exceeds three years residing period of one household. Thus, if the amount of tax on the transfer of land and building corresponding to the remaining portion excluding the amount calculated according to the ratio of size of the housing portion at the time of transfer to the said new building among the total capital gains tax calculated by the Defendant 34,873,740 won and the total amount of 6,974,780 won, excluding the amount calculated according to the ratio of size of the housing portion at the time of transfer to the said new building, the capital gains tax amount of 19,121,480 won (34,873,740 x 347,740 x 366.62; 10 won under the National Treasury Fractional Calculation Act; 6,824,310 won (the same shall apply) and defense tax amount of 3,824,780 x 262,3666) is reasonable.

Therefore, the plaintiff's claim of this case seeking the revocation of the above disposition of capital gains tax against the plaintiff is legitimate only within the scope of the above recognition, and the remaining claim is unfair, and it is dismissed. It is so decided as per Disposition.