Appellate Court Decision 2012 Deputy 3723 ( October 16, 2012)

Even if it is three houses for one household temporarily in the process of acquiring a substitute house, it is not subject to the special long-term holding deduction.

The remaining payment date of the apartment of this case sold by the Plaintiff remains about 10 days later than the remainder payment date of GG apartment purchased by the Plaintiff’s wife, and even if the Plaintiff temporarily became a three-house holder, it cannot be deemed that there was an inevitable circumstance to the Plaintiff. The sale of the apartment of this case constitutes a case where one household possessing three or more houses transfers the housing, and thus excluded from the special long-term holding deduction.

Article 95 of the Income Tax Act: Transfer Income Tax Rate (before January 1, 2014) Article 104 of the Income Tax Act

2012Guhap5405 Revocation of Disposition of Imposing capital gains tax, etc.

United Kingdom A

○ Head of tax office

March 15, 2013

April 19, 2013

1. The part concerning the claim for revocation of imposition of local income tax among the instant lawsuit is dismissed.

2. The plaintiff's remaining claims are dismissed.

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

Cheong-gu Office

"The defendant's August 8, 2012 (referred to as August 13, 2012 as stated in the complaint's claims) is revoked against the plaintiff, respectively." and the reasons therefor.

1. Details of the disposition;

A. At the time of September 20, 196, the Plaintiff acquired 200 OE apartment units 1302 BB apartment units 102 201 (hereinafter “instant apartment units”) from around that time, and sold the instant apartment units to the Defendant on March 30, 201 as the sales price of 10 OE units (the down payment OE units on the date of the contract, the intermediate payment 10 OE units, and the remainder of 10 OE units 10 on June 10, 201, the Plaintiff owned 20 OE units 20 OE units 2, 10 OE units 2, 201, 20 OE units 1, 201, 200 OE units 2, 201, 3OG units 2,000 OE units 2,000 OE units 2,01.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 4, Eul evidence Nos. 1 through 3 (number omitted), the purport of the whole pleadings

2. Judgment on the Defendant’s defense prior to the merits

The defendant is a local tax that is imposed and notified to the plaintiff on August 8, 2012. The defendant is obligated to pay the local income tax to the head of the Si/Gun having jurisdiction over the place for payment of income tax. Even if the defendant imposed and notified it, the defendant in an appeal litigation seeking revocation of such taxation should be the head of the Gu, which is the revenue quota at the time when the plaintiff pays the local income tax. Thus, the lawsuit claiming revocation of such taxation against the defendant is unlawful since it is filed against the non-qualified vehicle. Thus, according to Articles 87(1), 93(1), 93(2) and (5) of the Local Tax Act, local income tax is to be paid to the head of the local government having jurisdiction over the place for payment of income tax. If the head of the tax office refunds income tax or collects income tax by the method of imposition and notice of correction under the Framework Act on National Taxes or the Income Tax Act, it is deemed that the head of the local government concerned received or notified the amount of income tax to be imposed, and thus, the part seeking revocation of the local income tax and tax amount of Article 258 of the Local Tax Act is unlawful.

3. Whether imposition of capital gains tax is legitimate.

A. The plaintiff's assertion

The Plaintiff, in the process of selling the instant apartment in order to move, and acquiring GG apartment, a substitute house, was inevitably in the status of 10 days, and the Plaintiff did not acquire BB apartment for the purpose of speculation. Therefore, at the time of transferring the instant apartment, the Plaintiff could not be deemed to have actually possessed 3 houses. Nevertheless, the Defendant’s disposition based on the premise that the Plaintiff is a three-household house for one household is illegal.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

Article 95(1) of the former Income Tax Act (amended by Act No. 10854, Jul. 14, 201; hereinafter “the Act”) provides that “The transfer income amount shall be the amount calculated by deducting necessary expenses under Article 97 from the total income amount of transfer income under Article 94, and subtracting the special deduction amount for long-term holding from such amount.” Articles 95(2) and 104(1)4 of the Act provide that housing falling under three or more houses for one household prescribed by Presidential Decree shall be excluded from the special deduction for long-term holding, and Article 167-3(1) of the Enforcement Decree of the Act (amended by Presidential Decree No. 22977, Jun. 24, 2011; hereinafter “the Enforcement Decree of the Act”) provides that the Plaintiff’s remaining sale of housing falling under three or more apartment houses purchased within the territory of the Republic of Korea due to the remainder of the sale of apartment houses after the date of sale or purchase, shall be deemed to be “one apartment house owned within the territory of the principle of no taxation without exception.”

4. Conclusion

Therefore, the part of the claim for revocation of the imposition of local income tax among the lawsuit of this case is unlawful and dismissed, and the remaining claims are dismissed, and it is so decided as per Disposition.