Whether one house for one household is non-taxable as a person holding one house as of the date of transfer.

Since the issue, other than the issue at the time of the transfer of housing, was owned by an unauthorized house and thus, the non-taxation disposition is legitimate because it does not fall under the case of holding one house in Korea as

Article 89 (Non-Taxable Transfer Income Tax)

Article 154 (Scope of “One House for One Household”)

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance shall be revoked. The defendant's disposition of imposition of capital gains tax of KRW 11,367,420 against the plaintiff on June 8, 2006 shall be revoked.

1. Details of the disposition;

A. On October 31, 1998, the Plaintiff acquired on October 31, 1998, the ○○○○-dong ○○○-dong ○○○-9 329.9 square meters of neighborhood living facilities and multi-family houses 445.25 square meters of residential facilities and multi-family houses (hereinafter “instant house”) and transferred 695,00,000 won to the ○○○ and Kim○-dong on February 13, 2006.

B. On March 27, 2006, the Plaintiff filed a report on capital gains on the actual transaction price, and paid capital gains tax of 3,206,780 won. On April 26, 2006, the Plaintiff calculated capital gains tax as non-taxation for the reason that 110.31 square meters of the 3rd floor among the instant housing and 84.4 square meters of its appurtenant land (hereinafter “three-storys of the instant housing”) constitute one house for one household, and paid the difference after filing a revised report on capital gains tax of 28,354,670 won.

C. On June 8, 2006, the Defendant issued the instant disposition imposing capital gains tax of KRW 11,367,420 to the Plaintiff on the ground that the third floor of the instant housing does not constitute one house for one household.

D. The Plaintiff dissatisfied with the instant disposition and filed an appeal with the National Tax Tribunal, but was dismissed on January 19, 2007.

[Ground of recognition] The descriptions of Gap evidence Nos. 3, 4, 8, 9, Eul evidence Nos. 1, 2, and 4, and the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

(1) The Plaintiff transferred the instant house to the ○○○, Kim ○, which constitutes the same household between her mother and child, and the largest ○ and Kim ○ shall be considered as one person in fact. As such, the transfer of the instant house shall be deemed as one household to which Article 155(15) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 19890, Feb. 28, 2007) applies, and thus, the transfer income tax shall be exempted on the transfer of the instant house.

(2) The Plaintiff owned the 3rd floor of the instant housing and transferred it to the Plaintiff while residing for 3 years and 6 months. The basic rules of the Income Tax Act on the transfer of 3rd floor of the instant housing corresponds to 1 household subject to non-taxation of capital gains tax under Article 154(1) of the former Enforcement Decree of the Income Tax Act and on the transfer of 3rd floor of the instant housing, where 2 or more houses meeting the requirements of 1 household non-taxation of capital gains tax are transferred at the same time.

(b) Related statutes;

Article 89 (Non-Taxable Transfer Income Tax)

Article 154 (Scope of “One House for One Household”)

Article 155 (Special Cases concerning One House for One Household)

C. Determination

(1) As to the first argument

(A) Comprehensively taking account of the aforementioned evidence and the purport of the entire pleadings in Gap's evidence and evidence Nos. 5 and 7, and the testimony of the first instance court Kim Jong-dong, the plaintiff transferred the house of this case to the ○○○○ and Kim ○○ by sharing it to the largest person who is not one person, Kim ○, Kim ○-nam, who had resided in the house of this case prior to the acquisition of the house of this case, and acquired the purchase price by selling and borrowing the house owned by each person. After the acquisition of the house of this case, the fact that the ○○○ was transferred to each of the houses of this case on Jun. 8, 2006, and Kim ○-dae was living together after June 2006 can be acknowledged.

However, according to Article 74 of the Enforcement Rule of the Income Tax Act and Article 155 (15) of the former Enforcement Rule of the Income Tax Act, a multi-family house shall, in principle, be deemed as one house, but exceptionally, where a multi-family house is transferred to one person with a single unit of sale and purchase, it shall be deemed as one house, and in the case of a spouse, the spouse shall only form the same household with the resident and the family members shall share the same livelihood at the same address or residence with the resident. Unlike the fact that the Plaintiff does not transfer the instant house to one person, as the Plaintiff did not transfer the instant house to the same person, and as the largest shareholder did not have lived with the same domicile or residence as Kim ○, even if the largest shareholder and Kim ○ were to share the same livelihood at one house after a few months from the time of the acquisition of the instant house, it shall not be deemed that the instant house was transferred to one person by means of sale

(B) The Plaintiff asserts that the transfer of this case should be deemed a transfer to one person in light of the purport of the above amendment on the ground that Article 155(15) of the Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 155(15) provides that where a multi-family house is transferred to a single unit of sale and purchase, it shall be deemed that it is a single house, and that the buyer is not at least one person. However, it cannot be deemed that the law was amended on the ground that Article 1

(2) As to the second argument

(A) The Plaintiff asserted that only the instant house was owned at the time of transfer, and the Defendant asserted that the Plaintiff owned the unregistered house located in ○○○○-1, in addition to the instant house.

(B) According to the fact that the above ○○○○-No. 5 and 12-No. 4, 10, 5, 7, 8, 13, and 15 (including the virtual number) were newly constructed by the owner of the above ○○-No. 2, the Plaintiff acquired the above 0-No. 29,613 square meters around 14, 2003 and the above 10-No. 2, which were the owner of the above ○○-No. 2, which were the owner of the above ○○○-No. 2, which was the owner of the above ○○○-No. 1, which was the owner of the above ○○○○-No. 1, which was the owner of the above ○○○-No. 2, which was the owner of the above ○○-No. 1, 203 without permission, and the Plaintiff acquired the above ○-No. 2, which was the owner of the above ○○-No. 2.

(C) Therefore, the Plaintiff owned the above unauthorized house other than the instant house at the time of the transfer of the instant house. Thus, the Plaintiff does not constitute “cases where one house was possessed in Korea as of the date of transfer”, which is a non-taxation requirement under Article 154(1) of the former Enforcement Decree of the Income Tax Act.

3. Conclusion

Therefore, the disposition of this case is legitimate for the reason that the plaintiff's act of transferring the house of this case does not meet the non-taxation requirements under Articles 154 (1) and 155 (15) of the former Enforcement Decree of the Income Tax Act. Thus, the plaintiff's claim is dismissed as it is justifiable, and the judgment of the court of first instance that shares the conclusion is just, and the plaintiff's appeal is dismissed as it is without merit. It

[Cheongju District Court 2007Guhap578 ( December 14, 2007)]

1. The plaintiff's claim is dismissed.

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

The Defendant’s imposition of capital gains tax of KRW 11,367,420 against the Plaintiff on June 8, 2006 shall be revoked.

1. Details of the disposition;

A. On October 31, 1998, the Plaintiff acquired a building of 1552-9 square meters and a building of 445.25 square meters on the ground (hereinafter “instant housing”) in Ulsan-gu ○○○○○-dong 1552-9, 329.9 square meters, and transferred the instant housing to Nonparty ○○ and Kim○-○ on February 13, 2006, KRW 695,00,000.

B. On March 27, 2006, the Plaintiff reported capital gains tax to the Defendant based on the actual transaction price, and paid capital gains tax of KRW 3,206,780 to the Defendant, but on April 25, 2006, calculated only the third floor of the instant housing as non-taxation and revised capital gains tax to KRW 28,354,670, and paid the difference.

C. On June 8, 2006, the Defendant issued the instant disposition imposing capital gains tax of KRW 11,367,420 to the Plaintiff on the ground that the third floor of the instant housing does not constitute one house for one household.

D. The Plaintiff dissatisfied with the instant disposition and filed an appeal with the International Tribunal, but was dismissed on January 19, 2007.

[Reasons for Recognition] Gap evidence Nos. 3, 4, 8, 9, Eul evidence Nos. 1, 2, and 4, the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The parties' assertion

Since the Defendant did not transfer the instant house to one person, it cannot be deemed as one house for one household under the law, the instant disposition is lawful. Accordingly, the Plaintiff asserts that the Plaintiff transferred the instant house to Nonparty ○○○ and Kim○○○ 2, but the said two persons should be deemed as the same household between the mother and child, so the transfer of the instant house should be deemed as one household.

(b) Related statutes;

/ Income Tax Act

Article 89 (Non-Taxable Transfer Income)

(1) No capital gains tax (hereinafter referred to as "capital gains tax") shall be levied on the following incomes:

3. Income accruing from transfer of one house for one household as prescribed by the Presidential Decree (excluding expensive houses whose prices exceed the standard prescribed by the Presidential Decree) and the appurtenant land within the limit of the area of the land on which the building is built by the ratio as determined by the Presidential Decree by region (hereafter in this Article, referred to as the “land annexed to the house”); and

(1) Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 19507 of Jun. 12, 2006)

Article 154 (Scope of “One House for One Household”)

(1) The term “one house for one household prescribed by the Presidential Decree” in Article 89 (1) 3 of the Act means the case where a household comprised by a resident and his spouse together with the family members living together with him at the same address or same place of residence (hereinafter referred to as “one household”) in Korea as of the date of transfer has one house as of the date of holding, and where the period of holding the relevant house is not less than 3 years (in the case of a house located in the area designated and publicly notified as a planned area for housing site development under Article 3 of the Seoul Special Metropolitan City, a Metropolitan City, a Si, a Do and a Si, a mountain village and a Si, a Do, and a Do, the period of holding such house is not less than 3 years, and the period of holding such house is

(6) The term "family" in paragraph (1) means the lineal ascendants and descendants (including their spouses) and siblings of the resident and his/her spouse, and includes those who temporarily left the original address or dwelling place for school attendance, medical treatment, situations of work or business.

Article 155 (Special Cases in “One House for One Household”)

(15) In applying Article 154 (1), if the tenement house determined by the Ordinance of the Ministry of Finance and Economy (hereinafter referred to as the “tenement house”) is not sold in lots by household, but is transferred to one person or is wholly acquired from one person (including the case where one acquires it by constructing by himself), such tenement house shall be deemed to be a single house.

【Enforcement Rule of the Income Tax Act

Article 74 (multi-Family Houses)

The term "multi-family house determined by the Ordinance of the Ministry of Finance and Economy" in Article 155 (15) of the Decree means a house falling under subparagraph 1 (c) of attached Table 1 of the Enforcement Decree of the Building Act. In such cases, the partitioned part for one household to reside independently shall be deemed one house, respectively.

/ Enforcement Decree of the Building Act

[Attachment 1] Types of Buildings by Use

1. Single houses (including home nursery facilities, communal homes, and commuting welfare facilities for the aged);

(c) Multi-family house: The house which meets all the following requirements, and is not an apartment house:

(a) The number of floors used for housing (excluding underground floors) shall be not more than three: Provided, That where not less than 1/2 of the floor area of the first floor is used as a parking lot with a piloti structure and the remainder is used for purposes other than housing, the relevant floor shall be excluded from the number of floors of the housing;

(b) The total floor area (excluding the area of an underground parking lot) used for one house shall not exceed 660 square meters;

(c) 19 or less households can move together;

C. Determination

In full view of the evidence mentioned above, Gap evidence Nos. 5 and 7, and the purport of the entire pleadings in the testimony of the witness Kim ○, the plaintiff transferred the house of this case to the non-party ○○ and the non-party ○○ by sharing it with the non-party ○ and Kim ○○. Kim ○ and the least ○○ have acquired a loan by selling the house owned by each party, and Kim ○○ had resided in a place different from the highest ○○ at the time of transfer to the south of the head of the ○○○○○, but after the transfer of the house of this case, ○○○ and Kim ○ had resided in a place different from the highest ○○ on August 206 and March 21, 2006.

However, in light of the above provisions, in principle, a multi-family house shall be deemed one house if it is exceptionally transferred to one person without regard as one house, and in the case of a spouse, it is demanded that the family members of the same household with the resident make a living together with the same address or residence as the resident in order to form the same household with the resident, unlike the fact that the spouse is the spouse. Thus, the plaintiff does not transfer the house in this case to one person, and since the maximum ○○○ was living together with the same address or residence as Kim○, even though the maximum ○○ and Kim○○ received the house in this case from the mother and child, it cannot be deemed that he transferred the house in this case by sale and purchase.

3. Conclusion

Therefore, the plaintiff's claim is dismissed.