A multi-family house not falling under subparagraph 1 (c) of attached Table 1 of the Enforcement Decree of the Building Act shall not be subject to non-taxation for one household for the whole building.

The multi-family house not falling under subparagraph 1 (c) of attached Table 1 of the Enforcement Decree of the Building Act is a multi-family house, and thus, the whole building is deemed as one house and thus, the provisions of non-taxation

Article 155 (15) of the former Enforcement Decree of the Income Tax Act

2019Gudan61369 Revocation of Disposition of Imposing capital gains tax

Hao

○ Head of tax office

September 18, 2019

November 6, 2019

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The Defendant’s imposition of capital gains tax X, capital gains tax, and capital gains tax (including additional tax) for the Plaintiff in 201 XX. The imposition of capital gains tax for the Plaintiff shall be revoked.

1. Details of the disposition;

A. The Plaintiff’s spouse (hereinafter “instant transfer”) transferred (hereinafter “the instant transfer”) a building of 667 p.m. and 80m. and 5m. on its land (hereinafter “the instant building”) owned by the Plaintiff: (a) the Defendant reported and paid the capital gains tax X, the capital gains tax, the capital gains tax, and the capital gains tax to which 201 X belongs by applying the tax exemption provisions on one house-free housing for the instant transfer; (b) Park Jong-gu died on October 201, 201; and (c) the Plaintiff was the heir of Park Young-gu.

B. The director of the Seoul Regional Tax Office discussed the details of the transfer income tax of Park Jong-gu among the comprehensive audits against the defendant. At the time of the transfer of this case, the building of this case is the 4th and 5th in the public account book, and was registered as a house for not less than 1 to 3rd in the underground, but the number of floors actually used as a house by using the 2nd and 3rd in the house is the 4th, so it does not meet the requirements of the multi-family house corresponding to the detached house under subparagraph 1 of attached Table 1 of the Enforcement Decree of the Building Act, and is exempt from the 1st unit of household, and issued an instruction of audit disposition to correct the transfer income tax by excluding non-taxation for the remaining number of floors.

C. Accordingly, the Defendant notified the Plaintiff of the correction and notification of the capital gains tax for the year 201 X. XX, the capital gains tax for the year 201 X., and the capital gains tax for the year 201 X. (hereinafter “instant disposition”).

D. The Plaintiff, who was dissatisfied with the instant disposition, filed an appeal on X. X. 201X, but the Tax Tribunal dismissed the appeal in XX. 201.

[Reasons for Recognition] A without dispute, Gap evidence Nos. 1 through 6 (if there are additional numbers, each number), Eul evidence No. 1, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. Summary of the plaintiff's assertion

The concept of "one house" under Article 154 of the former Enforcement Decree of the Income Tax Act (wholly amended by Presidential Decree No. 26982, Feb. 17, 2016; hereinafter the same) is not defined in tax-related Acts, so the issue of one house should be determined in principle in accordance with the Civil Act. The building of this case is one real estate under the Civil Act, since the building of this case is registered as one real estate, and there is no other distinction, and it constitutes "one house" under tax law.

Meanwhile, the main text of Article 155(15) of the Enforcement Decree of the Income Tax Act provides that, in cases of multi-family houses falling under subparagraph 1 (c) of attached Table 1 of the Enforcement Decree of the Building Act (hereinafter referred to as "multi-family houses"), the part partitioned so that one household can reside independently shall be deemed as one house, and this corresponds to special provisions or exceptional provisions concerning the principle of Article 154(1) of the Enforcement Decree of the Income Tax Act in light of the content and structure of the text and structure thereof. Therefore, since the building of this case does not meet the requirements of multi-family houses, the main sentence of Article 155(15) of the Enforcement Decree of the Income Tax Act, which is a special provision or exceptional provision, cannot be applied, and Article 154(1) of the former Enforcement Decree of the Income Tax Act, which is a principle provision, is applicable. Therefore, the building of

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

Inasmuch as the instant building falls under a case where the part partitioned within one building is independent of its substance and constitutes multi-family housing, the part partitioned so that one household can independently reside shall be deemed as one house. Ultimately, as alleged by the Plaintiff, the provision on non-taxation for one household on the transfer of the instant building cannot be applied by deeming the entire building of this case as one house. Accordingly, the Plaintiff’s assertion on a different premise is without merit, and the instant disposition is lawful. The reasons are as follows.

① Under the principle of no taxation without law, the elements of taxation, non-taxation, or tax reduction or exemption shall be avoided, and the interpretation of tax laws and regulations shall be strictly interpreted and shall not be extensively interpreted or analogically interpreted without reasonable grounds (see, e.g., Supreme Court en banc Decision 2000Du7131, Mar. 15, 2001).

(2) Article 89(1)3 (a) of the former Income Tax Act (wholly amended by Act No. 14389, Dec. 20, 2016; hereinafter the same shall apply) provides that one household shall not impose capital gains tax on the transfer income of a house which is owned by one household and meets the requirements prescribed by Presidential Decree. Article 154(1) of the former Enforcement Decree of the Income Tax Act provides that "one house for one household shall mean one house which is owned by one household and its spouse together with their family members living together with the same address or same place of residence and shall have two or more years in Korea as of the date of transfer." Article 15(15) of the former Enforcement Decree of the Income Tax Act provides that "when Article 154(1)1 (c) of the Enforcement Decree of the same Act provides for the non-taxation of one house for one household, multi-family house falling under subparagraph 1 (c) of attached Table 1 of the Enforcement Decree of the Building Act shall be deemed one house partitioned so that one household can reside independently, and the entire house shall not be transferred by unit of 16.

③ The purpose of Article 89(1)3 of the former Income Tax Act is to ensure the stability of the residential life and the freedom of moving residence of the people by failing to impose income tax on capital gains in a specific case where the citizens can be deemed to have no purpose of acquiring capital gains or speculation when transferring a house which serves as a basis for residential life (see, e.g., Supreme Court Decision 92Nu12988, Jan. 19, 193). Of the "transfer of one house for one household" under Article 89(1)3 of the former Income Tax Act as a non-taxation subject to capital gains tax under Article 89(1)3 of the former Income Tax Act, the concept of "house" is not necessarily bound by the provisions of the Building Act, but is to be determined in light of the legislative intent of the relevant tax law from an independent standpoint. Even if each household who jointly uses a building site and building site, hallways, stairs, and other facilities, all or part of which can carry on an independent residential life within the scope of one building, it constitutes an independent building construction permit under 94.

④ In light of the legislative intent of the aforementioned provision on non-taxation for one house for one household and the legal principles stated in the above Supreme Court precedents, in calculating the number of houses under non-taxation for one house for one household, where each of the sections partitioned within one building, such as the instant building, is independent, and constitutes multi-family housing in substance, the number of houses ought to be calculated by deeming the section partitioned so that one household can reside independently in principle as one house. Since the portion other than the portion actually residing in multi-family house, multi-household house, or multi-household house or owner is the profit-making part through lease, the transfer of the profit-making part is reasonable in light of the fact that the said part is not directly related to

⑤ The proviso of Article 155(15) of the former Enforcement Decree of the Income Tax Act, which regards a multi-family house as a house as a unit of sale and purchase, was newly established by the amendment of the Enforcement Decree of the Income Tax Act by Presidential Decree No. 14860 on December 30, 195, which is deemed to be a house. In principle, a multi-family house falls under a multi-family house, but is constructed for the stabilization of the housing of homeless citizens. Considering that a multi-family house is constructed for the stabilization of the housing of homeless citizens, a provision was introduced to lease a part of a multi-family house and be exempt from taxation as one house at the time of transfer and to maintain equity. Since the Enforcement Decree of the Income Tax Act was amended by Presidential Decree No. 23588 on February 2, 2012, a multi-family house shall be deemed as one house for which one household can reside independently. In light of the legislative purport and legislative purport of Article 155(15) proviso of the former Enforcement Decree of the Income Tax Act and the proviso No. 15(1) proviso of the former Enforcement Decree of the Income Tax Act.

6. Since the fact that Park Jong-gu uses the instant building as a house, unlike the classification of uses entered in the public register, has no dispute between the parties, the instant building does not meet the requirements for multi-family houses (the number of floors used as a house shall not exceed three floors), and is not included in the application of Article 155 (15) of the former Enforcement Decree of the Income Tax Act, which applies only to multi-family houses.

7) Therefore, inasmuch as the instant building is a case where the partitioned part in one building is independent of its substance and constitutes collective housing, the part partitioned so that one household can reside independently in applying the non-taxation provisions on one house for one household under Article 89(1)3 of the former Income Tax Act, and Article 154(1) of the former Enforcement Decree of the Income Tax Act, the part partitioned so that one household can reside independently shall be deemed as one house. Ultimately, the entire building of this case shall be deemed as one house, and it shall not be subject to the application of

3. Conclusion

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