Seocho 2010west 1328 (Law No. 28, 2010.28)

not subject to reduction or exemption in the event of failure to register a business for the lease of housing;

Even if income tax, etc. has been paid on the rental income, the transfer tax shall not be reduced or exempted where the head of the competent tax office fails to submit a report on rental of housing and business registration;

2010Gudan25568 Revocation of Disposition of Imposing capital gains tax

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○ Head of tax office

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 capital gains tax of KRW 33,286,760 for the Plaintiff on March 10, 2010 shall be revoked.

1. Details of the disposition;

A. On August 18, 2001, Nonparty LA completed the preservation registration by newly building a neighborhood living facility and multi-household living facility with the fourth floor size on the ground of 81-1, and the Plaintiff, on September 11, 2001, donated 4 multi-household housing (No. 201, 202, 203, and 204) from Nonparty A, and leased the above multi-household housing from around that time.

B. On August 12, 2009, the Plaintiff transferred 204 of the above multi-household housing (hereinafter “instant housing”) to Nonparty GabB in KRW 165,00,000. On September 2009, the Plaintiff, upon making a preliminary return of transfer income tax on the instant housing, deemed it an exemption from capital gains tax under Article 97-2 of the Restriction of Special Taxation Act (amended by Act No. 9921, Jan. 1, 2010; hereinafter the same) and applied for reduction or exemption of capital gains tax, and paid only KRW 6,657,352.

C. On March 10, 2010, the Defendant issued the instant disposition imposing KRW 33,286,760 on the transfer of the instant house to the Plaintiff on the ground that the Plaintiff did not constitute reduction and exemption due to business registration under the Rental Housing Act.

[Ground of Recognition] Facts without dispute, Gap evidence 1, 2, 17 through 20, Eul evidence 1 to 4

2. Whether the instant disposition is lawful

A. The parties' assertion

(1) The plaintiff's assertion

The reduction or exemption of capital gains tax under Article 97-2 (1) of the Restriction of Special Taxation Act does not require that five or more households be leased for the registration of rental business operator, or for the registration of rental business operator under Article 6 of the Rental Housing Act. Even if the Plaintiff did not submit the registration of rental business operator under the Rental Housing Act or the registration of lease business operator under Article 97 (3) of the Special Act on the Restriction of Special Taxation and Article 97 (3) of the Enforcement Decree of the same Act, it is not intended that the Plaintiff would be exempted from capital gains tax as long as the Plaintiff satisfied the requirements of Article 97-2 (1) of the Restriction of Special Taxation Act, and the Tax Tribunal has decided to the same purport, and thus, the disposition of this case otherwise reported is unlawful, and the Defendant’s assertion is unlawful

In addition to the absence of business registration under the Rental Housing Act, the Plaintiff shall submit a housing lease report to the head of the competent tax office in accordance with Article 97(3) of the Restriction of Special Taxation Act and Article 97(3) of the Enforcement Decree of the same Act in order to reduce or exempt transfer income tax pursuant to Article 97-2 of the same Act. However, the Plaintiff has not submitted a housing lease declaration, and the transfer of the instant housing does not fall under the reduction

(b) Related statutes;

As shown in the attached Form.

C. Determination

In Articles 97-2(2) and 97(3) of the Restriction of Special Taxation Act and Article 97(3) of the Enforcement Decree of the same Act, for the reduction or exemption of transfer income tax on a newly-built rental house under Article 97-2(1) of the Restriction of Special Taxation Act, the Minister of Strategy and Finance shall require the head of the competent tax office having jurisdiction over the location of the rental house within three months from the commencement date of the lease of the house to submit a report on the lease of the house to the head of the competent tax office having jurisdiction over the location of the rental house. Since there is no dispute between the parties, the Plaintiff’s failure to submit a report on lease of the house to the head of the competent tax office is apparent in the legal text that the Plaintiff is unable to have the transfer income tax reduced or exempted

Therefore, the disposition of this case imposing capital gains tax on the ground that the transfer of the Plaintiff’s house does not fall under the reduction or exemption of capital gains tax is legitimate, and the Plaintiff’s assertion is without merit

3. Conclusion

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