Seoul Administrative Court-2013-Gu Partnership-52315 (O6, 2013)

The disposition of this case in which the transfer income amount to be reduced within five years from the date of acquisition of newly-built house without legal basis is unlawful.

The calculation of transfer income amount generated for 5 years from the date of acquisition of a newly-built house and other necessary matters are closed and delegated as prescribed by the Presidential Decree. Thus, the transfer income amount to be reduced or exempted may not be calculated as it is not

Article 99-3 of the Restriction of Special Taxation Act

2013Nu448 Revocation of Disposition of Imposing capital gains tax

KimA

BB Director of the Tax Office

Seoul Administrative Court 2013Guhap52315

February 26, 2014

March 19, 2014

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

Purport of claim and appeal

1. Purport of claim

The Defendant’s disposition of imposition of ○○○○○ (including additional tax) of the capital gains tax in 2008 that the Plaintiff made to the Plaintiff (including the Plaintiff’s disposition date stated in the complaint) is revoked (the Plaintiff’s disposition date*. * is a clerical error).

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Quotation of judgment of the first instance;

The reasons why this court should explain are as follows: (a) the reasons why the defendant is required to consider is identical to the reasons for the judgment of the court of first instance, except for any addition under the following: (b) Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

2. Judgment on the defendant's assertion

A. Summary of the defendant's assertion

1) If the requirements for tax reduction and exemption also apply to the requirements for strict interpretation, and a newly-built house is acquired through redevelopment and reconstruction, there is no legal basis for calculating the tax reduction and exemption, and thus, the capital gains tax reduction and exemption should be excluded. The lawsuit in this case should be dismissed as there is no

2) Article 40(1) of the Enforcement Decree provides that when income accrues, the amount of reduction or exemption income and taxable income shall be distributed proportionally on any basis; the legislative purport of Article 99-3(1) of the Act is to impose income tax on capital gains accrued after five years have elapsed from the date of acquisition of the old house from the date of acquisition of the new house to the date of acquisition of the newly-built house; and even if a member bears liquidation money to acquire the new house, it is not likely that capital gains tax would be excessively calculated because it has already been determined before the acquisition of the newly-built house, Article 40(1) of the Enforcement Decree shall apply mutatis mutandis to the calculation of the amount of reduction

B. Determination

1) Determination on the assertion of retirement

Article 99-3 (1) of the former Restriction of Special Taxation Act (amended by Act No. 9272 of Dec. 26, 2008; hereinafter referred to as the "Act") provides that when a resident acquires and transfers a newly-built house located in a certain area, the amount of tax on the income accrued shall be reduced or the transfer income shall be deducted from the income subject to the income subject to the transfer income tax, and as long as the taxation imposed by the defendant against the plaintiff exists effective as stated in the purport of the claim, the plaintiff shall be deemed to have a benefit in dispute, so the defendant's argument that the lawsuit of this case

2) Determination on the assertion that Article 41(1) of the Enforcement Decree shall apply

Article 9-3(1) of the Act provides that "where a newly-built house is transferred within five years from the date of its acquisition, the transfer income amount shall be calculated by using "the method of reducing or exempting the amount of tax," while Article 99-3(2) of the Act provides that "if the newly-built house is transferred after five years from the date of its acquisition, the transfer income amount arising for five years from the date of its acquisition shall be deducted." Therefore, where the newly-built house is transferred within five years from the date of its acquisition, it cannot be calculated by "the method of deducting the transfer income amount applicable to the transfer after five years from the date of its acquisition" (see Supreme Court Decision 2010Du3725, Jun. 28, 2012). In applying paragraph (1), Article 99-3(4) of the Act provides that "the transfer income amount accrued for five years from the date of its acquisition from the date of its acquisition shall be calculated by applying mutatis mutandis Article 99-3(1) of the Act."

The calculation formula under Article 40(1) of the Enforcement Decree of the Income Tax Act provides for the reduction of capital gains tax on real estate subject to restructuring, and the real estate subject to restructuring is not at issue before its acquisition, because there is no actual transfer value on the date five years have elapsed since the date of acquisition. Therefore, it is reasonable to view that the calculation formula was made without bearing in mind the capital gains tax on the real estate subject to restructuring before its acquisition date, so it is inappropriate to apply the calculation formula if it is transferred within five years from the date of acquisition to the date of acquisition, as long as there is no provision for applying the calculation formula differently within five years from the date of acquisition to the date of acquisition.

If a newly-built house is transferred within five years from the date of its acquisition, the calculation formula under Article 40 (1) of the Enforcement Decree is applied to the case of transfer within five years from the date of its acquisition, the "standard market price at the time of its acquisition" should be applied to the "standard market price at the time of its acquisition at the time of its acquisition" while the "standard market price at the time of its acquisition at the time of its acquisition at the time of its acquisition" to the "standard market price at the time of its acquisition at the time of its acquisition at the time of its acquisition". This is not permissible because it has been arbitrarily changed without legal basis, and it is calculated as the defendant. In the case of calculation with the defendant, it is unfair that the newly-built house in this case owned by the plaintiff and the newly-built house acquired after the reconstruction of this case will be treated as the same house as the one at the time of its acquisition at the time of its acquisition at the time of its division, and that if the standard market price at the time of its acquisition at the time of its acquisition at the time of the division, the amount of its excessive reduction and exemption.

Therefore, the defendant's above assertion is without merit.

3. Conclusion

Therefore, the defendant's appeal is dismissed as it is without merit, and the judgment of the court of first instance is just (as of the order of the court of first instance *. *. *. *. *. *. *. *. *. *. *. *. *. 260 won in the order of the court of first instance ***. *. *. *. *. *. 290 won in each clerical error). The defendant's appeal is dismissed and it is so decided as per Disposition.