Seoul Administrative Court 2013Gudan10086 ( October 02, 2013)

It shall be deemed that a separate house is owned only when the house has the authority to use, profit, and dispose of the house which can be the basis of the residential life.

In fact, only some equity shares are held for the purpose of securing collateral or bonds for the purpose of voluntary sale, and it cannot be deemed that a person has the authority to use, profit from, and dispose of separate houses because he/she owns separate houses on the sole ground that he/she is a nominal equity right holder. Thus, it cannot be deemed that a person does not meet the requirements for non-taxation on one house for one household.

Article 154 of the Enforcement Decree of Income Tax Act

2013Nu5033 Revocation of Disposition of Imposing capital gains tax

IsaA

Head of Geumcheon Tax Office

May 27, 2014

June 17, 2014

1. The defendant's appeal is dismissed.

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

Cheong-gu Office

The Defendant imposed a transfer income tax of KRW 00,000,000 on the Plaintiff on September 5, 2012.

(2) The decision to revoke is revoked.

subsection (1)

The judgment of the first instance is revoked, and the plaintiff's claim is dismissed.

1. Details of the disposition;

The court's explanation on this part is the same as the corresponding part of the reasoning of the judgment of the court of first instance. Thus, this part of the judgment is accepted in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

2. The assertion and judgment

A. The plaintiff's assertion

The plaintiff asserts that the share of the first and second houses owned by the plaintiff at the time of the transfer of the apartment of this case is not owned for the purpose of owning the apartment of this case, but for the purpose of securing the claim against BB, and thus it is extremely limited to the share and thus it is impossible to use the apartment of this case as a house. Thus, the plaintiff's disposition of this case is unlawful since it erred in the determination

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

1) The Plaintiff’s occurrence of claims

The Plaintiff, NunaCC, and BB owned a co-ownership share of 00 00 -0 00 -00 - 00 - 00 - 56 m20 - 00 - 000 - 000 - 621 m21 m2 (in this case, the Plaintiff’s share is 1/4). On May 1, 2006, B andCC obtained loans from a mortgagee as D agricultural cooperative with a maximum debt amount of 610,000 m2 with a maximum debt amount of 60,000 m2.

In other words, on September 14, 2006, BB,CC, and the Plaintiff created the right to collateral security of KRW 210,000,000 as a mortgagee with EE as a collateral, and as collateral, borrowed KRW 150,000 from BE to use the F Real Estate Development (hereinafter referred to as the “Company”) as the operating fund for the EE.

However, all of the shares of the above forest owned by the Plaintiff,CC, and B were sold during the voluntary auction on August 17, 2009, and the Plaintiff lost their respective shares in the forest, and 80 million won was resisted toCC andB, and 30 million won was paid, but 50 million won was not paid.

2) The Plaintiff’s acquisition and loss of shares in the housing

The plaintiff was transferred a part of the co-ownership shares in the real estate owned byCC and company (hereinafter referred to as "the co-ownership shares in this case when the plaintiff collectively refers to the co-ownership shares of the five real estate following the transfer of the plaintiff) in accordance with the proposal of patriarchism that makes it more difficult to manage the company's operation.

When the Plaintiff is entitled to a co-ownership of the instant housing No. 1, the said housing had already been established with a maximum debt amount exceeding KRW 1.8 billion, and when the Plaintiff is entitled to a co-ownership share of the instant housing No. 2, the said housing had already been established with a maximum debt amount exceeding KRW 1.1 billion. However, the said housing had already been established with respect to the entire real estate including the instant No. 1 and 2, each of the following procedures for voluntary auction or disposition on default

On the other hand, on August 2, 2011, the Plaintiff registered the transfer of the Plaintiff’s name as to the instant co-ownership on August 2, 2011 on the grounds of “cancellation of agreement” on August 1, 2011, and thereafter, the said real estate was sold to a third party in a voluntary auction procedure.

[Ground of recognition] The descriptions of Gap evidence Nos. 1 and 2, testimony of the witness pacifism, the purport of the whole pleadings

D. Determination

1) Article 88 of the former Income Tax Act (wholly amended by Act No. 12169, Jan. 1, 2014); Article 151(1) of the former Enforcement Decree of the Income Tax Act (wholly amended by Presidential Decree No. 23887, Jun. 29, 2012); and Article 151(1) of the former Enforcement Decree of the Income Tax Act (wholly amended by Presidential Decree No. 23887, Jun. 29, 2012) provides that the transfer of ownership to secure repayment of debts shall not be deemed a transfer of assets which are subject to capital gains tax if an obligor uses or profits from such assets. As such, insofar as the transfer of ownership only for the purpose of securing debts is not deemed a transfer of ownership, the calculation of the number of one house for one household is not included in the calculation of the number of houses for the purpose of securing debts (see, e.g., Supreme Court Decision 2005Du843, Dec. 13, 2005).

2) Based on these legal principles, the following circumstances are acknowledged as follows: ① the Plaintiff’s acquisition cause for acquiring the instant co-ownership is the sale and purchase, and the acquisition value is also indicated on the registry, but it does not seem to have actually paid the purchase price to the seller, and it does not appear to have been returned when the registration of ownership transfer was completed on August 2, 201 due to the cancellation of agreement on August 1, 2011. ② The Plaintiff’s share on the first and second houses was extremely partial share of each house, and the structure and area of each house were so extremely difficult to use each house as the basis for acquiring the above shares, even if it appears that the Plaintiff could not easily have acquired each house as the basis for using or benefiting from the house, ③ the Plaintiff’s purchase and sale of the instant house, the aggregate of the maximum debt amount established before and after the Plaintiff’s purchase and sale of the instant house was difficult to be seen as the Plaintiff’s share in excess of 1.8 billion won, and the Plaintiff’s share of co-ownership or 200 billion share had not yet been established.

Therefore, the Plaintiff’s co-ownership on the instant Nos. 1 and 2 is not included in the calculation of the number of houses to determine the scope of one house for one household. Therefore, the Plaintiff is deemed to meet the non-taxation requirements for one house for one household at the time of transfer of the instant apartment. Therefore, the instant disposition made on a different premise is unlawful, and the Plaintiff’s assertion pointing this out

3. Conclusion

Therefore, the plaintiff's claim is justified, and the judgment of the court of first instance with the same conclusion is just, and the defendant's appeal is dismissed. It is so decided as per Disposition.