Suwon District Court-2018-Gu Group-6380 ( October 10, 2018)

Cho-2017-China-4396 ( December 06, 2017)

A person who has acquired the right of sale by donation shall not be deemed a person who has entered into the first sales contract.

If the right of sale is acquired by the method of specific succession of donation from the person who entered into the first sales contract, it may not be recognized as the person who entered into the first sales contract.

Article 99-2 of the Restriction of Special Taxation Act

2018Nu71351 Revocation of disposition of imposing capital gains tax

Red○ ○

○ Head of tax office

Suwon District Court Decision 2018Gudan6380 Decided October 10, 2018

February 28, 2019

March 21, 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 imposition of capital gains tax of KRW 64,580,90 (including additional tax) for the Plaintiff on June 7, 2017 by the Defendant shall be revoked.

1. Basic facts and relevant statutes;

This part of the judgment of the court is the same as the corresponding part of the judgment of the court of first instance. Thus, it is accepted by Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Considering the purport of Article 99-2(1) of the Act on Special Cases concerning Taxation intending to revitalize the real estate market through reduction or exemption of capital gains tax, the Plaintiff’s trust at the time of acquiring the instant housing, the circumstance that the Plaintiff was to receive some of the instant housing, and the circumstances that the Plaintiff did not cancel the registration of transfer of ownership due to interested parties, etc., in the case of a newly-built house subject to reduction or exemption of capital gains tax pursuant to Article 99-2(1) of the Act on Special Cases concerning Taxation Restrictions, where Kim○, the first buyer, and Kim○, a spouse of the same household, donated a part of the right to sell the instant house to the Plaintiff, who is the spouse of the same household, the entire instant house still ought to be considered as a house subject to reduction or exemption of capital gains tax.

Therefore, the instant disposition imposing capital gains tax on the Plaintiff is unlawful.

B. Determination

According to Article 99-2 (1) of the Restriction of Special Taxation Act, where a person prescribed by Presidential Decree, such as a project undertaker who supplies a house of a newly-built house, house unsold in lots, or house owned by one household under Article 54 of the Housing Act, has transferred the relevant newly-built house, etc. in compliance with the requirements other than those required by the above provisions, capital gains tax shall be reduced

According to the above facts, the plaintiff's husband and wife did not acquire "one house of the first household owner" as stated in Article 99-2 (1) of the Restriction of Special Taxation Act, and Kim○ entered into a contract for the first time to purchase "newly-built house" after Kim○○'s donation of part of the newly-built house from Kim○○'s Kim, and the plaintiff did not enter into the first sale contract. Although Kim○, the donor's husband, even though he was the plaintiff's husband, he did not acquire the right of sale by way of specific succession, such as inheritance, but acquired the right of sale by the plaintiff's inheritance, and it cannot be viewed as the plaintiff's first sale contract. The Supreme Court Decision 2010Du6847 Decided January 27, 201 cited by the plaintiff, which was based on the plaintiff, is inappropriate to be invoked in this case where the taxpayer transferred the existing house to the same spouse who is a member of the same household, and the transfer income tax due to the transfer of the newly-built house.

Therefore, the plaintiff's assertion is without merit, and the disposition of this case is legitimate.

3. Conclusion

The plaintiff's claim shall be dismissed on the ground that it is without merit. The judgment of the court of first instance is just in conclusion, and the plaintiff's appeal is dismissed on the ground that it is without merit