Whether capital gains tax is non-taxable because of a rental house meeting certain requirements

Only rental houses meeting certain requirements shall not be considered as a house owned by a resident in connection with the non-taxation of capital gains tax on one house for one household.

Article 89 of the Income Tax Act

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The Defendant’s disposition of imposition of capital gains tax of KRW 50,878,380 against the Plaintiff on March 14, 2006 is revoked.

1. Details of the disposition;

A. On May 9, 2003, the Plaintiff sold ○○○○○-dong 301 ○○○○-dong 301 ○○○-dong 507 dong 802 (hereinafter referred to as “one house”), and completed the registration of ownership transfer on the same day.

B. The Plaintiff did not report the transfer income tax to the Defendant on the ground that the transfer of the first house constitutes one house for one household.

C. On March 7, 200, 200 in order to run a housing rental business, △△, which is the Plaintiff’s wife, completed the registration as a rental business operator at ○○○ City, and on July 30, 2001, ○○○○○ apartment, 339, ○○○○○, 339, 1505, 1505 (hereinafter referred to as “second-class house”), which is owned by the Plaintiff, until now.

D. On March 14, 2006, the Defendant issued the instant disposition imposing KRW 50,878,380 on the Plaintiff on the ground that the transfer of the first house does not constitute the transfer of the first house for one household under Article 89(1)3 of the Income Tax Act on the ground that △△△△△ owned the second house.

[Recognition] Facts without dispute, Gap evidence No. 1 to 4, Eul evidence No. 1 to 3,5,6, Eul evidence No. 2-1 and Eul evidence No. 2, and the purport of the whole pleadings

2. Whether the disposition is lawful;

A. Summary of the parties' assertion

(1) Defendant

The second house does not fall under the leased house for not less than five years after commencing the lease before December 31, 200 under Article 97 (1) of the Restriction of Special Taxation Act. Thus, the second house cannot be regarded as the "rental house" under Article 97 (2) of the same Act. Therefore, the disposition of this case imposing transfer income tax is legitimate on the ground that the transfer of the first house does not fall under the transfer of one house for one household under Article 89 (1) 3 of the Income Tax Act.

(2) Plaintiff

Article 97 (2) of the Restriction of Special Taxation Act provides that a rental house shall not be deemed a house owned by the relevant resident in application of non-taxation on transfer income tax for the transfer of one house for one household, and Article 97 (1) of the same Act provides that a rental house which has commenced on or before December 31, 2000 and has been leased for not less than 5 years shall be reduced by 50/100 of transfer income tax if it transfers the rental house, and does not provide that a rental house, which has commenced on or after the relevant base date, shall be deemed a house owned by the relevant resident. Thus, the disposition of this case on the premise that the second house does not constitute a rental house under Article 97

(b) Related statutes;

/ Income Tax Act

Article 89. Non-taxable Transfer Income

(1) No income tax (hereinafter referred to as “transfer income tax”) shall be levied on the following incomes:

3. Income accruing from a transfer of such one house for one household as prescribed by the Presidential Decree (excluding expensive houses whose prices exceed the standard prescribed by the Presidential Decree) and the appurtenant land within the area calculated by multiplying the area of the land on which the building is built by the reduction of such area as prescribed by the Presidential Decree by area (hereafter in this Article, referred to as the “land annexed to the

【Enforcement Decree of the Income Tax Act

§ 154. Scope of “one house for one household”

(1) The term “one house for one household as prescribed by the Presidential Decree” in Article 89 (1) 3 of the Act means the case where a household comprised by a resident and his spouse together with the family members living together with the same address or same place of residence (hereinafter referred to as “one household”) in Korea as of the transfer date, and where the relevant house is held for not less than 3 years (in the case of a house located in the subdivision, day, mountain village, mountain village, mountain village, mountain village, or new urban area designated and publicly notified as a planned area for housing site development under Article 3 of the Housing Site Development Promotion Act, the relevant house is held for not less than 3 years and the period of residence during that retention is not less than 2 years (hereinafter referred to as an omission).

/ Restriction of Special Taxation

Article 97 (Capital Gains Tax Reduction or Exemption for Long-Term Rental Houses)

(1) In case where a resident as prescribed by the Presidential Decree transfers a national housing falling under any of the following subparagraphs (including the land not exceeding twice the total floor area of the relevant building) after renting it for not less than 5 years after commencing a lease on or before December 31, 2000, the tax amount equivalent to 50/100 of the transfer income tax on the income accruing from the transfer of relevant house (hereinafter referred to as the “rental house”) shall be abated or exempted: Provided, That in case of a rental house from among constructed rental houses under the Rental Housing Act, a rental house leased for not less than 5 years from among the purchased rental houses under the same Act, and a rental house (limited to the house which has not been occupied at the time of acquisition) leased for not less than 5 years after acquiring it after commencing a lease on or after January 1, 1995, and a rental house for not less

1. Houses newly built during the period from January 1, 1986 to December 31, 2000; and

2. An apartment house newly built on or before December 31, 1985 that had not been occupied as of January 1, 1986.

(2) In the application of the provisions of Article 89 (1) 3 of the Income Tax Act, a rental house shall not be regarded as a house owned by the relevant resident.

(4) Calculation of the rental period for a rental house referred to in paragraph (1) and other necessary matters shall be determined by the Presidential Decree.

【Enforcement Decree of the Restriction of Special Taxation

Article 97 (Capital Gains Tax Reduction or Exemption for Long-Term Rental Houses)

(1) The term “resident prescribed by the Presidential Decree” in the main sentence of Article 97 (1) of the Act means a resident who leases not less than 5 rental houses.

m. Rental Housing Act

Article 2 (Definitions) The definitions of terms used in this Act shall be as follows:

1. The term “rental housing” means constructed or purchased rental housing made available for the purpose of leasing;

C. Determination

In light of the principle of no taxation without law, or the requirements for tax exemption or tax exemption, the interpretation of tax laws shall be interpreted in accordance with the text of the law, barring any special circumstance, and shall not be extensively interpreted or analogically interpreted without reasonable grounds. In particular, it accords with the principle of fair taxation to strictly interpret that the provision is clearly preferential among the requirements for tax exemption or exemption (see Supreme Court Decision 2003Du7392, May 28, 2004).

Article 89 (1) 3 of the Income Tax Act provides that one house for one household as prescribed by the Presidential Decree and any income accruing from a transfer of land within a specific scope shall not be subject to capital gains tax. Article 97 (1) (main sentence) of the Restriction of Special Taxation Act and Article 97 (1) of the Enforcement Decree of the same Act provide that where a resident who leases 5 or more rental houses transfers 5 or more, a newly built national housing after commencing a lease on or before December 31, 2000, transfers 5 or more years after renting 5 or more, the relevant house shall be reduced by 50/100 of capital gains tax on the income accruing from the transfer of such rental house, and Article 89 (2) of the Income Tax Act provides that in the application of Article 89 (1) 3 of the Income Tax Act on Non-taxation of Capital Gains Tax for one household, a rental house shall not be deemed a house owned by the relevant resident.

First, the main text of Article 97 (1) of the Restriction of Special Taxation Act provides that a part of the transfer income tax shall be reduced or exempted if a house is transferred after the commencement of lease of a specific national housing directly before December 31, 200 and the lease of the relevant house for five or more years, but the provision provides that "rental house" shall not be regarded as a house owned by the relevant resident. Second, in the case of a rental business operator, the lease of a house shall not be regarded as a house owned by the relevant resident. Second, in the case of a rental business operator, the Restriction of Special Taxation Act provides that a resident who leases more than 5 rental house shall own two houses or more due to the rental business operator: (1) a newly constructed national house for 10 or more years from January 1, 1986 to December 31, 200; (4) a lease of a house for five or more years from the commencement of legislative purpose to December 31, 200; (3) a special provision on the transfer income tax shall not be applied to 10/10/10 of a house.

In full view of the purport of the argument in Gap evidence Nos. 4 and Eul evidence Nos. 2-2, the plaintiff living together in the same address as △△△, which is the wife, and △△△△△ is the rental business operator registered in 12 rental houses including the second house, and △△△△△ has acquired the remaining rental houses other than the second house among the rental houses on or before December 31, 200, but it is recognized that △△△△△ has acquired the second house on or before July 30, 201. According to the above facts, according to the above facts, the second house does not constitute the house leased for five years or more after commencement of lease on or before December 31, 200, and therefore, in applying Article 89 (1) 3 of the Income Tax Act, since it is not a rental house prescribed in Article 97 (2) of the Restriction of Special Taxation Act, it shall be deemed that the transfer of the first house constitutes the plaintiff's house in the application of Article 89 (2) of the Income Tax Act.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.