Newly-built rental houses, etc. are excluded from the number of houses owned when determining whether one house is non-taxable.

To exclude rental housing owned by a rental business operator from the number of houses owned at the time of determining whether the rental housing owned by the rental business operator is exempt from one house for one household, it shall constitute rental housing prescribed by Article 97(1) of the Restriction of Special Taxation Act or newly-built rental housing prescribed by Article 97-2(1) of the Restriction of Special Taxation Act. Since the Plaintiff’s rental housing does not fall under this, it is legitimate

2010Guhap5082 Revocation of Disposition of Imposing capital gains tax

LAA

○ Head of tax office

7, 2011

ocil 23, 201

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 5,823,130 against the Plaintiff on January 10, 201 shall be revoked.

1. Details of the disposition;

A. On February 7, 2003, the Plaintiff acquired ○○○○○-dong 915 ○○○○-dong 915 ○○○○○-dong 805 ○○○○ (hereinafter “instant house”) and transferred it to tinA on December 21, 2009, and made a preliminary return on January 25, 2010 to the Defendant that the transfer of the instant house constitutes a transfer of one house for one household, and thus is exempt from capital gains tax.

B. However, on July 7, 2004, the Plaintiff’s husband ParkB, who had been in the same household with the Plaintiff at the time of transferring the instant house, completed a business registration under the Rental Housing Act on July 7, 2004, and completed a business registration under the Income Tax Act on May 23, 2005. At the time of transferring the instant house, the Plaintiff owned a total of four rental housing units (hereinafter “each of the instant rental housing units”) and operated the housing rental business as follows.

C. On September 1, 2010, the Defendant issued a notice of KRW 5,874,264 (including additional tax 223,759) as transfer income tax for September 1, 2010 (hereinafter “disposition on September 1, 2010”) on the ground that the Plaintiff owned five houses of this case at the time of the transfer of the instant house. On January 10, 2011, the Defendant revoked the disposition of KRW 5,874,264 (including additional tax 223,759) as transfer income tax for September 1, 2010, on the ground that there was an error in the transfer date (the date of actual transfer, December 21, 2009; January 10, 2010) in the said preliminary return of transfer income tax for the Plaintiff on January 25, 2010, and revoked the disposition on September 1, 2010 as transfer date (the date of reversion; hereinafter “instant disposition”).

D. Meanwhile, the Plaintiff was dissatisfied with the disposition rendered on September 1, 2010 and filed a request for review with the Commissioner of the National Tax Service on September 13, 2010, but was decided to dismiss it as of November 1, 2010, and filed the instant lawsuit on November 17, 2010.

[Ground of recognition] Facts without dispute, Gap 1, 3 through 5, Eul 1 to 7 (including each number)

each entry of this section.

2. Determination on the legitimacy of the instant disposition

A. The plaintiff's assertion

According to Article 97 (2) of the Restriction of Special Taxation Act (hereinafter "the Restriction of Special Taxation Act"), rental housing is excluded from the number of houses at the time of non-taxation of one house for one household under Article 89 (1) 3 of the Income Tax Act. In determining whether to grant non-taxation, rental housing refers to all rental housing, and is not limited to rental housing stipulated in Article 97 (1) of the Restriction of Special Taxation Act. Therefore, each of the instant rental housing owned by ParkB is all of rental housing and excluded from the number of houses at the time of non-taxation of one household under Article 97 (2) of the Restriction of Special Taxation Act, and the transfer of the instant housing by the Plaintiff constitutes the transfer of one house for one household and thus

B. Relevant statutes

The entries in the attached statutes are as follows.

C. Determination

Article 97 (2) of the Restriction of Special Taxation Act provides that "rental house under paragraph (1) of the same Article shall be deemed a rental house under paragraph (1) of the same Article, including all rental houses as alleged by the plaintiff, and that Article 97 (1) of the Restriction of Special Taxation Act provides that "No more than twice the total floor area of the relevant building (including land appurtenant thereto) shall be included in paragraph (1) of the same Article, and if a house is leased for five or more years before December 31, 200, it shall be interpreted that the term "rental house" under paragraph (1) of the same Article means a rental house as defined in paragraph (1) of the same Article, and it shall be interpreted that it conforms to the above provision of the Restriction of Special Taxation Act and the provisions of paragraph (2) of the same Article provides that if it is necessary to continue to use the term "non-permanent rental house" under paragraph (1) of the same Article, it shall be interpreted that it is necessary to establish the meaning of the first provision of the Restriction of Special Taxation Act and the provisions of Special Taxation Act for the transfer of the house.

Meanwhile, a rental house under the provision of Article 97 (1) of the Restriction of Special Taxation Act refers to a newly built house during the period from January 1, 1986 to December 31, 200, or a newly built apartment house on or before December 31, 1985 that had not been occupied as of January 1, 1986. In addition, a newly built rental house among newly built rental houses under Article 97-2 (1) of the Restriction of Special Taxation Act is newly built during the period from August 20, 199 to December 31, 201, or is newly built during the period from August 19, 199 to that from August 31, 200 and has not been occupied as of August 20, 199; the newly built rental house shall be acquired as of August 20, 199 to that of a newly constructed house or paid the down payment during the period from August 19, 209 to that of a newly built house.

2) However, each of the instant rental housing units was newly constructed on April 20, 201 only, and ParkB was not first acquired, and entered into a sale and purchase contract around May 27, 2004. Thus, each of the instant rental housing units is included in the number of houses owned at the time of determining whether one house for one household is non-taxable.

3) Therefore, the Plaintiff’s above assertion is without merit, and the Defendant’s disposition of this case is lawful.

3. Conclusion

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