Seoul Administrative Court 2018Gudan21821 ( October 24, 2019)

The instant officetel constitutes a house and thus does not meet the requirements for non-taxation for one household.

The issue of whether the instant officetel is a house shall be determined according to its actual use, regardless of the classification of use in the public record of the building.

Article 88 of the Income Tax Act

2019Nu45120 Revocation of disposition of imposing capital gains tax

○ ○

○ Head of tax office

on 17 July 2019

on January 25, 2019

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance shall be revoked. The defendant's imposition of KRW 20** Transfer Income Tax of 28,052,440 on the plaintiff on October 0, 200 shall be revoked.

1. The reasoning of the judgment of the court of first instance is as stated in the reasoning of the judgment of the court of first instance (except for the part on the conclusion of 3.3. conclusion), and the supplementary and additional Plaintiff asserts as follows: (a) the purpose of the public register of the instant officetel is not a house, but a building other than a house, and (b) the instant officetel was imposed and paid as a house, and thus, the instant disposition based on the premise that the instant officetel is a house is illegal disposition that violates the principle of prohibition of unjust infringement of property rights under Article 18 of the Framework Act on National Taxes, the principle of prohibition of retroactive taxation, and the principle of prohibition of retroactive taxation.

On the other hand, since capital gains tax and property tax are local taxes imposed by local governments different from those imposed by local governments, they cannot be deemed as violating the principle of prohibition of property rights infringement or the principle of prohibition of retroactive taxation solely on the ground that they differ from the criteria for imposition of local taxes. Furthermore, as seen in the judgment of the first instance court cited by this court, whether a transferor of a house constitutes "where another building is owned by another building, such other building shall be determined by whether the actual use of the building is actually offered for residence regardless of the usage classification of the building injury, and it is reasonable to deem that the instant officetel falls under a house prescribed in the Income Tax Act in light of various circumstances. The Plaintiff’s assertion on the different premise is without merit. Then, the Plaintiff’s claim should be dismissed on the other premise. As such, the judgment of the first instance court is justified as the conclusion, and thus, the Plaintiff’s