Cho High-2018-west-1587 ( October 27, 2018)

Whether a house falls under the non-taxation requirement for one household where the registration of ownership is cancelled in accordance with the judgment of nullity of the cause of acquisition.

Although the registration of ownership was cancelled in accordance with the judgment of nullity of the cause of acquisition after the spouse was donated by his/her parents as of the date of transfer of the house, it does not constitute one house non-taxation requirement for one household in case the donation

Article 89 of the Income Tax Act

2018Gudan71659 Revocation of Disposition of Imposing capital gains tax

Registration of transfer of ownership is a contract for invalidation of cause which is concluded without the declaration of intention of donation.

The ownership transfer registration of this case also includes ownership transfer registration of this case to be cancelled because it is a registration of invalidity.

The Seoul Southern District Court △△△△△△ case; hereinafter referred to as “the cancellation of this case”).

△△△△△△△△△△△△△△△△△△△△△△△△, and the Plaintiff was awarded a favorable judgment, and this judgment was made on this basis.

A decision became final and conclusive around that time.

D. The Defendant: (a) from △△△△△△△, to △△△△; (b) from △△△△; and (c) to △△△△△; and

In conducting a tax investigation, the spouse of the plaintiff as of the transfer date of the transferred house of this case

The fact that the house was owned by the mother was donated from the mother was confirmed. The defendant of this case

For the instant transferred house, deeming that the donated house is included in the number of houses of the Plaintiff household;

The primary household excluded from special cases of non-taxation, and △△△△△△△. △△△△△△△, the Plaintiff, △△△△△△△△.

The transfer income tax of 00,000,000 won was corrected and notified (hereinafter referred to as the "disposition of this case").

F. The Plaintiff dissatisfied with the instant disposition, and filed an objection, △△△△△. △△△△△△ and the Tax Tribunal.

Although the appeal was filed, △△△△△. △△△△△△, was dismissed.

[Reasons for Recognition] Unsatisfy, Gap evidence 1-2, Gap evidence 2, 3, 5, 7 (if any)

would include a number, hereinafter the same shall apply unless the number is otherwise indicated;

Gap evidence 4-1, 2, 7, 8, 10, 12, Eul evidence 1 through 3, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. Summary of the plaintiff's assertion

The registration of transfer of ownership of this case becomes final and conclusive by the cancellation due to the invalidity of the cause as above.

As such, the gift house of this case at the time of transferring the house of this case was lost by the Plaintiff’s household.

subsection (1) of this subsection shall be excluded from the number of houses held by the Corporation. Accordingly, the house of this case shall be

Therefore, the instant disposition is unlawful.

B. Relevant statutes

former Income Tax Act (Amended by Act No. 12169, Jan. 1, 2014)

Article 89 (Non-Taxable Capital Gains)

(1) Income tax on capital gains (hereinafter referred to as "capital gains tax") shall be levied on the following income:

tax shall not be levied.

3. Any of the following houses (value exceeds the standards prescribed by Presidential Decree):

A high-priced house shall be excluded) and appurtenant land, the area of which is fixed by Presidential Decree for each region.

land less than the size calculated by multiplying the ratio determined by the Corporation (hereafter referred to as "land annexed to a house" in this Article)

(c)income accruing from transfer;

(a) One house for one household prescribed by Presidential Decree;

C. Determination

1) Whether the instant transferred house had only one house for one household at the time of transfer (the validity of the donation contract)

In imposing capital gains tax, gains from transfer shall be computed as at the time of transfer of assets.

Therefore, at the time of transfer, whether the transfer of the assets in question constitutes a taxation requirement or a tax exemption requirement.

on the basis of subparagraph (see, e.g., Supreme Court Decision 97Nu20816, Jul. 10, 1998).

As seen earlier, △△△△△△, the transfer date of the instant transferred house, as seen earlier. △△△△.

Since it is recognized that the transfer registration of ownership in this case is completed in the future of the plaintiff's spouse, the plaintiff's spouse

Based on the presumption of registration, this case by a lawful donation from the mother of the Plaintiff’s spouse.

It is presumed that the gift house has been acquired.

On the other hand, after the transfer date of the transferred house of this case, a judgment of cancellation of this case was rendered.

As seen earlier, each of the evidence Nos. 4 through 6 and No. 2 and 3 was written on the same facts.

In light of the following facts and circumstances acknowledged in full view of the purport of the entire pleadings

In this case, the above presumption is based on the fact that the judgment of cancellation of the lawsuit in this case was rendered and finalized.

B. The Plaintiff’s spouse is not able to transfer the house of this case, and there is no other reflective evidence.

At the time of transfer, it was deemed that the gift house of this case was legally donated from the mother.

Therefore, the instant transferred house does not constitute one house for one household at the time of transfer.

① The Plaintiff filed a transfer income tax return prior to filing a lawsuit for cancellation of the instant case.

The gift house of this case is owned at the time of transferring the house to be transferred, and even at the time of reporting the transfer income tax.

The number of housing units for the plaintiff's household although the registration of transfer of ownership has been completed intentionally;

In addition, capital gains tax was reported except in this case. Subsequent to the cancellation lawsuit of this case, the plaintiff's capital gains tax

The date of the report was filed on 00 days after the date of the report.

② A gift contract signed between the Plaintiff’s spouse and the head of the △△△△△△△△△△△△△△△, was drafted.

The Plaintiff’s spouse is △△△△△△△. △△△△△△. The gift tax on the instant donated housing is voluntarily granted.

reporting and payment has been made, and it shall be made at the end of about 0 years from the date of the above donation.

A suit was filed for cancellation.

③ The Plaintiff’s proof that the mother’s health was not good at the time of donation to the instant donated house

The plaintiff asserted that he did not have any intention or coercion, but the diagnosis of the mother submitted by the plaintiff

The head of a mother's health condition at the time of donation solely with materials, such as the details of medical treatment, etc.

유효하게 표시할 수 없을 정도로 나빴다고 인정하기 어렵다.

④ The time when the Plaintiff reported capital gains tax and the time when the Plaintiff filed a lawsuit for cancellation of this case

The relationship between the plaintiff and the party to the lawsuit for cancellation of this case, the time of conclusion of the gift contract and thereafter

We examine the circumstances, such as the circumstances, that the cancellation lawsuit of this case was declared and finalized by a judgment without pleading.

In light of the circumstances, the cancellation lawsuit of this case is to avoid the Plaintiff’s transfer income tax burden.

for the purpose of a gift contract to be effective, but it shall be null and void by ex post facto collusion.

It is considered to have been raised to file a lawsuit and receive a judgment ordering cancellation.

2) Whether the effect of the donation should be retroactively extinguished on the ground that the contract was rescinded by agreement

Even if the registration of transfer of ownership has been made on the ground of donation, the act of donation constituting the ground for such registration.

(1) If the transfer of ownership has not been made or is null and void, such transfer shall take effect from the beginning.

as such, regardless of whether a judgment ordering cancellation of ownership transfer registration has been issued or not;

It is clear that the first gift may not be subject to taxation, but the first gift shall become effective once, resulting therefrom.

Ownership transfer registration has been duly completed in collusion between the parties even if the ownership transfer registration was lawfully completed;

The cancellation of registration by filing a lawsuit as if the former registration was null and void, and with the ruling ordering cancellation of registration.

in the case of the parties, a kind of rescission of agreement between the parties to the existing gift contract has been established.

Since it is reasonable to see that a lawsuit seeking cancellation of ownership transfer registration is filed after a gift tax is imposed.

Details of the state even if the judgment in favor of the state became final and conclusive or the registration was cancelled accordingly.

Since a taxation claim has already been duly established, such reasons alone alone are fit for a disposition imposing gift tax.

No legal nature may be challenged (see, e.g., Supreme Court Decision 98Du2164, Apr. 24, 1998).

The principle of no taxation without law prevents the requirements of taxation or tax exemption.

In the absence of special circumstances, the interpretation of tax laws and regulations shall be interpreted as the legal text, and without reasonable grounds.

No expansional interpretation or analogical interpretation shall be permitted, and in particular, among the provisions of reduction or exemption requirements.

Strict interpretation that can be seen as a expressly preferential provision is also the principle of tax equity.

Inasmuch as consistent with the legal doctrine (see, e.g., Supreme Court Decision 2009Du18325, Apr. 29, 2010) is examined in light of the legal doctrine:

Tax claims in interpreting and applying one house requirement for one household, which is a non-taxation requirement for capital gains tax;

The above determination that the legality of the tax imposition disposition can not be asserted due to the cancellation of agreement after the agreement has been duly formed.

It is reasonable to view that the legal doctrine is applied as it is.

As seen earlier, the action for cancellation of this case shall be

(1) if the court has filed a lawsuit and received a ruling ordering cancellation as if the collusion was void,

As such, it is deemed that a kind of rescission of the agreement of gift contract between the plaintiff's spouse and the mother has been established.

However, at the time of the transfer by the Plaintiff of the instant transferred house, the instant transferred house is one household.

Specific national taxation claims have already been duly established due to the failure to meet the requirements for non-taxation;

of this case after the judgment of cancellation of this case was rendered, or registration was made accordingly.

Even if the cancellation was made, the legality of the disposition of this case cannot be asserted solely on such grounds.

Therefore, the instant transferred house cannot be deemed as satisfying the non-taxation requirements for one house for one household.

Therefore, the Defendant’s disposition of this case is lawful.

3. Conclusion

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

AA

head of Dongjak-gu Tax Office

March 13, 2019

April 3, 2019

1. The plaintiff's claim is dismissed.

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

On November 1, 2017, the head of the Gu-employed branch Defendant revoked the disposition of imposition of the transfer income tax of ○○○○○ for the year of △△△△△, which was against the Plaintiff.

1. Details of the disposition;

A. The Plaintiff transferred the land and the above ground buildings owned by the Plaintiff in △△△△ year, such as the new-dong, Yeongdeungpo-gu, Seoul and its ground buildings (hereinafter “instant transferred house”). △△△△△△△△△△△△△. The instant transferred house is exempt from one house for one household, and the land and the above ground buildings are subject to taxation, and reported and paid KRW 00,000,000,000,000 for the capital gains tax for the year of △△△△△△△△△, on the basis that the instant transferred house is subject to taxation.

B. The Plaintiff’s spouse, KimA(hereinafter “spouse”) completed the Plaintiff’s property transfer registration (hereinafter “instant property transfer registration”) on the first floor ○○○○○○○○ (hereinafter “instant donated house”) of multi-household building on the ground of the new-dong, Yeongdeungpo-gu, Seoul Metropolitan Government (hereinafter “the mother”), on the grounds of the Plaintiff’s spouse’s donation, △△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△, on

C. However, the Plaintiff’s head of the △△△△△△△△△△. △△△△△△△△△△△, and the Plaintiff’s spouse.