Seoul Administrative Court 2009Gudan15114 ( October 16, 2010)

Capital gains tax reduction or exemption for long-term rental houses

The reduction or exemption of capital gains tax on long-term rental houses shall apply to residents who start the lease prior to December 31, 200 and lease five or more rental houses for five or more years, and houses acquired after January 1, 201 shall not be included in the long-term rental houses.

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

○ ○

head of Sung Dong Tax Office

1. The part on the imposition of capital gains tax as of January 20, 2009 among the judgment of the first instance court shall be revoked, and the lawsuit corresponding to the revocation part shall be dismissed.

2. The remainder of the Plaintiff’s appeal is dismissed.

3. The total costs of the litigation shall be borne by the Plaintiff.

The judgment of the first instance court shall be revoked. The Defendant’s imposition of capital gains tax of KRW 18,649,160 for the Plaintiff on January 20, 2009 and the imposition of capital gains tax of KRW 33,359,510 for the Plaintiff on March 1, 2009 shall be revoked, respectively.

1. Details of disposition;

The reasons for this Court concerning this case are as follows. Thus, the part concerning this case is cited in accordance with Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

O 3(e) part 3(e) is as follows:

[E] On January 20, 2009, the Defendant imposed and notified the Plaintiff of KRW 18,649,160, including capital gains tax of KRW 17,681,62, and additional additional tax of KRW 967,538 (hereinafter “instant first disposition”) on the ground that the transfer of the instant first house does not constitute capital gains tax reduction or exemption under Article 97 or 97-2 of the former Restriction of Special Taxation Act (hereinafter “instant second disposition”). On March 1, 2009, the Defendant imposed and notified the Plaintiff of KRW 48,710,02, capital gains tax of KRW 20,02, additional tax of KRW 2,31,31,135, including KRW 17,681,622, and additional tax of KRW 31,531,539,531,531 of capital gains tax of KRW 17,681,62,530 (hereinafter “final disposition”).

O 3rd F. First, the plaintiff's "as to the first disposition of this case" is "as to the imposition disposition of capital gains tax for the year 2007".

2. Determination as to whether the instant lawsuit is legitimate

A. Determination as to the claim for revocation of the First Disposition

The disposition No. 2 of this case constitutes an increase in the tax base and amount of tax after the disposition No. 1 of this case was issued and found to have any omission or error in the tax base and amount of tax (as a result of the statement No. 1-2 of the evidence No. 1-2 of this case, it is recognized that the Defendant issued the final tax amount of KRW 17,681,622, excluding the additional tax on the non-payment at the time of the disposition No. 1 of this case from the total determined tax amount of KRW 51,041,135 as at March 1, 209,

The first disposition of this case was absorbed into the second disposition of this case, which constitutes a disposition of increase, and extinguished. The claim seeking the revocation of the first disposition of this case already extinguished is unlawful.

B. Determination as to the claim for revocation of the second disposition of this case

In full view of the overall purport of the pleadings in the evidence Nos. 2-2 and 6, the Plaintiff received the instant disposition No. 2 on March 12, 2009, and thereafter, on April 27, 2009, an objection was filed with the head of the Seoul Regional Tax Office on the imposition of capital gains tax for the year 2007 (the first written objection (the notice or disposition of the notice of the first 9), and the statement of the notice or disposition is written as KRW 14,908,80 in capital gains tax for the year 2007, and the written objection is written as of January 20, 2009 as of the date of imposition). The Seoul Regional Tax Office rejected the objection without demanding the correction of the above written objection pursuant to Article 63 of the Framework Act on National Taxes, and the said written objection was dismissed on June 12, 2009.

Although the plaintiff stated in the separate sheet as the object of the plaintiff's claim on January 20, 2009, the first disposition of this case was not extinguished by the second disposition of this case at the time of filing an objection, so the plaintiff's genuine intent can be deemed to be subject to the judgment on the imposition of transfer income tax for 2007. ② The defendant knew that the first disposition of this case was extinguished by the second disposition of this case on March 1, 2009, but he was well aware that the first disposition of this case was extinguished, he did not issue an amended request pursuant to Article 63 of the Framework Act on National Taxes, but did not dismiss the objection. ③ The plaintiff was subject to the first disposition of this case and the second disposition of this case within a short time, and it was difficult for the plaintiff to accurately state the object of the judgment, and ④ since the plaintiff had applied for reduction or exemption of transfer income tax for the first and second houses of this case before the first disposition of this case, it seems that the defendant did not have made the first disposition of this case in the second order of this case.

Even if it is not so, the instant Disposition 1 and the instant Disposition 2 are all dispositions concerning the transfer income tax for the year 2007, and each of the instant Disposition 2 is a disposition to rectify the increase in the first Disposition. Each of the above dispositions is conducted by the same housing association and transferred to the Plaintiff on the same day on the similar day, and the basic facts and legal issues are common. Thus, the tax authority may be deemed to have received an opportunity to review the basic facts and legal issues through the previous trial procedure for the instant Disposition 1. In light of the above-mentioned circumstances, it is harsh that the Plaintiff, the taxpayer, was given an opportunity to undergo a separate prior trial procedure for the increased disposition (see, e.g., Supreme Court Decisions 96Nu2200, Apr. 8, 197; 91Nu1329, Aug. 14, 1992); and it is difficult to deem that the instant disposition was unlawful on the ground that the Plaintiff did not undergo the previous trial procedure for the instant Disposition.

3. Determination as to the legitimacy of the second disposition of this case

A. The plaintiff's assertion

1) Since the instant first and second houses are long-term rental houses leased for at least five years at the time of each transfer, capital gains tax should be reduced or exempted pursuant to Article 97 of the former Restriction of Special Taxation Act.

2) Even if it is not so, the Plaintiff transferred the first and second houses of this case to a tax official on three occasions around 2001, with an explanation that capital gains tax may be reduced or exempted pursuant to Article 97 of the former Restriction of Special Taxation Act. Thus, the Plaintiff should have capital gains tax reduced or exempted in accordance with the principle of trust protection.

3) The transfer of the instant Nos. 1 and 2 shall be exempted from capital gains tax in accordance with the special case of reduction and exemption of newly built rental housing under Article 97-2 of the former Restriction of Special Taxation

B. Relevant statutes

It is as shown in the attached Form.

C. Determination on the assertion of reduction or exemption of capital gains tax on long-term rental houses

1) Determination as to the first house of this case

In accordance with Article 97(1) of the former Restriction of Special Taxation Act, there is no evidence to prove that the Plaintiff leased the instant house No. 1 before December 31, 2000. According to Article 97(9) of the former Restriction of Special Taxation Act, the Plaintiff is only deemed to have leased the instant house No. 1 to Park business proprietor on August 21, 2002.

Next, we examine whether the Plaintiff leased the instant house No. 1 for at least five years.

According to Article 97(1) and (4) of the Restriction of Special Taxation Act and Article 97(5) of the former Enforcement Decree of the Restriction of Special Taxation Act, when calculating the rental period for rental housing, the lease period for less than five houses shall not be deemed the house lease period.

From August 16, 1999 to May 25, 2007, the Plaintiff acquired the instant house No. 1. However, during the said period, the Plaintiff owned and leased the instant house No. 1,2,840 to May 25, 2007. However, during the said period, the Plaintiff may not include maximum of 1,784 days (=2,84 days, 284 days, 1,40 days, 280 days, 16 days, 2 days from July 1, 2003 to May 21, 2006, before acquiring the instant real estate:

However, the transfer of the first house in this case does not meet the requirements of reduction or exemption.

2) Determination as to the second house of this case

구 조세특례제한법 제97조 제1항, 구 조세특례제한법 시행령 제97조 제1항에 의하면, 원고가 이 사건 제2주택에 관한 양도소득세를 감면받기 위해서는 임대주택을 5호 이상 임대하는 거주자에 해당하여야 하고, 원고가 임대주택을 5호 이상 임대하는 거주자에 해당하는지 여부는 양도시기를 기준으로 판정하여야 한다(대법원 2001. 7. 27. 선고 99두8269 판결, 대법원 2004. 6. 24. 선고 2004두3656 판결 참조). 원고가 이 사건 제2주택을 양도한 2007. 6. 20. 당시 원고는 이 사건 제2주택, <표 2> ㉱,㉲,㉳ 부동산 합계 4호인 주택을 임대하고 있었으므로, 구 조세특례제한법 제97조 제1항에서 정한 '대통령령이 정하는 거주자'에 해당하지 않는다(을 제4호증의 8 기재에 따르면, 원고는 2007. 1. 16. 서울특별시 성동구청장으로부터 이 사건 제1, 2주택을 포함하여 합계 3호인 주택을 임대한 임대사업자로 한 임대사업자등록증을 교부받았다).

Next, we examine whether the Plaintiff leased the housing No. 2 of this case for at least five years.

원고가 이 사건 제2주택을 취득한 1999. 8. 16.부터 2007. 6. 20.까지는 2,866일 이다. 그런데 위 기간 중, 원고가 〈표 1> ①, ②, ③ 부동산 및 〈표 2> ㉯,㉰ 부동산을 모두 양도하고 난 2003. 7. 1.부터 〈표 2> ㉲ 부동산을 취득하기 전인 2006. 5. 21.까지 1,056일 동안 원고는 이 사건 제1, 2주택, <표 2> ㉮,㉱ 부동산 합계 4호인 주택을 소유하여 임대하고 있었으므로, 위 1,056일은 주택임대기간에 포함할 수 없다. 원고가 이 사건 제1주택을 양도한 후인 2007. 5. 26.부터 2007. 6. 20.까지 26일도 원고가 이 사건 제2주택, <표 2> ㉱,㉲,㉳ 부동산 합계 4호인 주택을 임대하고 있었으므로, 주택임대기간에 더할 수 없다. 따라서 제2주택 임대기간 중 최대 1,784일{= 2,866일 - (1,056일 + 26일) }, 약 4.887년(= 1,784일/365일)만 구 조세특례제한법 시행령 제97조 제5항에 따른 임대기간으로 인정된다.

However, the transfer of the second house in this case does not meet the requirements for reduction or exemption.

D. Determination on the assertion that should be reduced or exempted in accordance with the principle of trust protection

Even if a tax official stated to the effect that capital gains tax reduction or exemption is possible in the course of counseling to the Plaintiff, it cannot be deemed that the tax authority expressed a public opinion. The Plaintiff’s assertion that the principle of trust protection should be applied is without merit.

E. Determination on the assertion of reduction or exemption of capital gains tax on newly-built rental houses

We examine whether the transfer of the first and second houses constitutes "special cases of reduction or exemption of capital gains tax on newly-built rental houses" in Article 97-2 of the former Restriction of Special Taxation Act.

According to the purport of the evidence Nos. 4-8 and the argument, in the case of transfer of a rental house, the house Nos. 1 and 2 of this case constitutes each purchased rental house, and according to Article 97-2 (1) 2 of the former Restriction of Special Taxation Act, in the case of a rental house for purchase, it is limited to the case where a sales contract is concluded and a down payment is made from August 20, 199 to December 31, 2001) and a rental house that has been acquired after lease for five years or more, it is required to exempt the transfer income tax on the income accrued from the transfer of the house concerned.

Comprehensively taking account of the overall purport of the arguments in Eul evidence Nos. 4 and 5 (including each number), the plaintiff paid the remainder to the lowestA on August 16, 199 and acquired the right to sell the first house of this case, and paid the remainder to the Gangwon on August 16, 199 and acquired the right to sell the second house of this case. The first and second houses of this case do not constitute the case where the plaintiff acquired the right to sell the second house of this case after August 20, 199. The above assertion is without merit.

4. Conclusion

Of the instant lawsuit, the part of the claim for revocation of the disposition imposing capital gains tax on January 20, 2009 is unlawful, and the claim for money is without merit.

Of the judgment of the first instance court, the part concerning the imposition of capital gains tax as of January 20, 2009 is unfair, and thus the revocation part is revoked and the lawsuit corresponding to the revoked part is dismissed. The remaining appeal by the plaintiff is dismissed.