The early 2014 middle 1143

Whether tax exemption for one household can be applied by excluding a long-term rental house owned by a person who has not registered his/her business due to a housing rental business from the number of houses owned by him/her.

Even if a person engages in rental business in a rental house, it does not constitute a long-term rental house under the Income Tax Act unless he/she is registered as a business operator.

Article 167-3 of the Enforcement Decree of the Income Tax Act

2014Gudan5819 Revocation of Disposition of Imposition of Capital Gains Tax, etc.

NewA

Head of Namyang District Tax Office

September 23, 2015

November 18, 2015

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

Defendant on January 20, 2014, KRW 44,263,887 of the transfer income tax for the Plaintiff for the year 2012 (additional tax)

(including) revoke the disposition of imposition.

1. Basic facts

A. On November 27, 2001, KimA, its husband, entered into a sales contract with AAAA reconstruction association to purchase at KRW 267,080,00 an apartment of KRW 114 Dong 204 (hereinafter “the apartment of this case”).

B. On June 5, 2004, KimA donated 1/2 of the right to sell the apartment of this case to the Plaintiff, and changed the purchaser’s name to the joint ownership of the Plaintiff and KimA (each of 1/2 shares) with the approval of the above association.

C. On September 9, 2005, the Plaintiff and KimA owned the instant apartment after completing the joint ownership transfer registration. On March 19, 2012, the Plaintiff and KimA transferred the instant apartment to Jeong for KRW 630,000,000, and subsequently filing a preliminary return on the transfer income tax return, the Plaintiff and KimA were entitled to one house tax exemption provision for one household.

applying B, applying the application for reduction and exemption.

D. On the other hand, the defendant held the above apartment, AAAA Dong Adong 307-1 Adong 307 (hereinafter referred to as the "house of this case") at the time of the transfer of the apartment of this case. On the other hand, since the plaintiff did not have registered the business at the tax office, the housing of this case does not fall under the "house of this case" and the plaintiff is not subject to the application of non-taxation provisions on one house for one household. Thus, the plaintiff denied the application of special taxation on the apartment of this case. On January 20, 2014, the defendant decided and notified the plaintiff about the transfer income tax of 44,263,887 (including additional tax) (hereinafter referred to as the "disposition of this case"), and the plaintiff rejected the transfer income tax of this case for 205 years from the date of filing an appeal with the Tax Tribunal on February 7, 2014, but the defendant rejected the transfer income tax of this case for 204, 2014.

[Ground of recognition] Unsatisfy, Gap evidence 1 to 6, Eul evidence 1 and 2 (including separate numbers for those with separate numbers), the whole purport of oral argument

2. Determination on the legitimacy of the disposition

A. The plaintiff's assertion

① On February 28, 2012, the Plaintiff registered as a rental business operator with respect to the instant apartment on February 28, 2012, and actually engaged in rental business. Therefore, the instant housing constitutes “long-term rental house” as stipulated in Article 155(19) of the Enforcement Decree of the Income Tax Act. However, even though the Plaintiff failed to obtain business registration at the district tax office having jurisdiction over the instant apartment, it is unreasonable to deny the application of the non-taxation provisions for one household on the instant apartment solely on the ground that the Plaintiff failed to obtain business registration.

② The instant house is a newly-built house to which Article 99-3 of the Restriction of Special Taxation Act applies. It is unreasonable for the Defendant to deny the Plaintiff to the effect that the application of the special provisions on non-taxation to the capital gains accrued for five years from the date of acquisition

B. Determination

1) Judgment as to the Plaintiff’s assertion

Article 155 (19) of the former Enforcement Decree of the Income Tax Act (wholly amended by Presidential Decree No. 23723, Apr. 13, 2012) provides that where a household which owns a long-term rental house or a house of residence transfers a house of residence in which one household who owns a house of residence has resided for two or more years, if the house of residence in the long-term rental as of the date of transfer is registered and leased as a rental house pursuant to Article 6 of the Rental Housing Act, the above long-term rental house is deemed not a house but a house of residence in the house of residence. Meanwhile, Article 167-3 (1) 2 of the Enforcement Decree of the same Act provides that the above long-term rental house refers to a specific house leased by a resident who registered as a business operator under

However, there is no dispute that the Plaintiff did not register the business under Article 168 of the former Income Tax Act until March 19, 2012, which was the date of the transfer of the apartment house in this case, until March 19, 2012. The principle of no taxation without the law is applicable, or the interpretation of tax laws and regulations is interpreted in accordance with the law, barring special circumstances, and it is not allowed to expand or analogically interpret without reasonable grounds (see, e.g., Supreme Court Decision 2003Du7200, Mar. 12, 2004). Since the Plaintiff failed to meet part of the requirements for recognition of the "long-term rental house" under Article 167-3 (1) 2 of the former Enforcement Decree of the Income Tax Act because the Plaintiff did not actually operate the rental business in the instant rental house, the instant house does not constitute the "long-term rental house" under Article 167-3 (1) 2 of the former Enforcement Decree of the Income Tax Act, and as long as the Plaintiff did not register its business.

2) Judgment on the Plaintiff’s assertion

Article 9-3(1)1 of the former Restriction of Special Taxation Act (wholly amended by Act No. 11486, Oct. 2, 201) provides that the income accruing from the first sale contract between the resident and the housing construction business operator shall be exempted from the transfer of the newly-built house within five years from the date of acquisition, and that the transfer income amount accrued for five years from the date of acquisition of the newly-built house shall be deducted from the income amount subject to the transfer income tax if the newly-built house is transferred after the lapse of five years from the acquisition date of the newly-built house. Even if the other spouse acquires the newly-built house under the name of the husband and wife, the plaintiff's first sale contract is concluded between the plaintiff and the 20-built house owner and the 10-built house owner's first sale contract and the 20-built house owner's first acquisition of the newly-built house after the payment of the down-built house shall not be interpreted as a special provision on the reduction and exemption of the transfer income tax under the law.

3. Conclusion

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