Review Transfer 2008-0162 ( October 27, 2008)

The principal registration after provisional registration is made after the provision of a house as security for transfer, and the time of transfer in case of a successful bid by a mortgagee thereafter;

It is reasonable to view that a creditor had no house at the time of transfer for three years or more since the registration of ownership transfer in the name of the creditor becomes null and void because the time of auction by the mortgagee falls under a valid registration consistent with the substantive legal relations of the creditor.

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

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 KRW 19,464,00 against the Plaintiff on January 2, 2008 shall be revoked.

1. Circumstances of the disposition;

A. On August 29, 2001, the Plaintiff acquired IMO apartment 207 (hereinafter referred to as the “instant house”) from Seo-gu Seoul, Seo-gu, Seoul, Ma○○○ apartment 46, and thereafter, on October 8, 2003, the provisional registration of the right to claim the transfer of ownership was completed on the instant house, and the ownership registration was completed on January 6, 2004 in the name of Kim Ho-hun. However, on January 2, 2008, the Defendant issued the instant disposition imposing KRW 19,464,600 on the ground that the Plaintiff did not own the instant house for three or more years and did not meet the requirements for non-taxation for one household.

[Reasons for Recognition] Where there is no dispute between the parties, Gap evidence 1, Eul evidence 4-1, Eul evidence 1, and the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The Plaintiff borrowed KRW 100 million from Kim Jong-hun as collateral and completed a registration of the right to claim ownership transfer on the instant house with respect to it. After that, Kim Il-hun without undergoing the liquidation procedure prior to the repayment period for the above loan obligation, the registration of ownership transfer in the name of Kim Il-hun on the instant house is null and void. Since the Plaintiff sold the instant house on March 28, 2005 at the voluntary auction procedure to be viewed as the instant house, the Plaintiff owned the instant house for more than three years at the time of the said successful bid, and the instant disposition on the premise that the Plaintiff did not own the instant house for more than three years is unlawful.

B. Related Acts

It is as shown in the attached Form.

C. Determination

(1) Article 89 (1) 3 of the former Income Tax Act (amended by Act No. 7837 of Dec. 31, 2005) and Article 154 (1) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 20618 of Feb. 22, 2008) delegated by Article 89 (1) 3 and Article 154 (1) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 20618 of Feb. 2, 2008) stipulate that where a house located in Seoul is transferred, the period of possession of the house shall be three years or more, and that the period of residence shall be two years or more during the period of possession shall be non-taxation. Since there is no dispute between the parties as to the fact that the Plaintiff resided in the house of this case after acquiring the house of this case, whether the transfer of the house of this case is exempt from taxation shall be determined depending on the validity of the ownership transfer registration in the name of the house of this case.

(2) The plaintiff acquired the above house on August 29, 201, with the overall purport of 00 million won of the loan No. 1, No. 2, and No. 2. The plaintiff acquired the above house under the title of 300 billion won, with the agreement on the provisional seizure of No. 2, and with the remaining 00 billion won of the loan No. 2, the remaining period of 1,000 won for the above house under the title of 30 billion won was 1,000,000 won, and the registration of 2,000 won was 1,000 won for the above house under the title of 1,000 won, which was 1,000 won for the above mortgage No. 30,000 won for the above house. The plaintiff was 1,000 won for the above house under the title of 30,000 won, and thus, the provisional seizure of 2,000 won for the above house was null and void.

(3) Therefore, the instant disposition based on the premise that the Plaintiff did not own the instant house for not less than three years at the time of transferring the instant house to Kim Jong-hun is lawful.

3. Conclusion

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