Seoul Administrative Court 2010Gudan16953 ( October 31, 2011)

Transfer income tax is legitimate because it has not satisfied the requirements for residence for at least two years;

Although a house has been owned for three years or more, it did not meet the requirements for non-taxation for one household because it did not reside for two years or more during the retention period, and it is insufficient to recognize that the expenses alleged as necessary expenses constitute the expenses directly disbursed for transferring the house or that the actual expenses were disbursed.

2011Nu2220 Revocation of disposition of imposing capital gains tax

IsaA

Head of Seodaemun Tax Office

Seoul Administrative Court Decision 2010Gudan16953 decided May 31, 2011

October 13, 2011

October 27, 2011

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 shall revoke the disposition of imposition of capital gains tax of KRW 8,930,520 against the plaintiff on September 4, 2009.

1. Details of the disposition;

A. On February 22, 1989, the Plaintiff acquired and owned 00-0 O-dong O-dong O-dong 000,000 won in 20,600,000,000, and transferred the instant house to 110,000,000 won on December 20, 2007, and did not file a return on the transfer income tax on the ground that the instant house was non-taxable for one household after transferring it to 110,000,000 won.

B. Accordingly, on September 4, 2009, the Defendant decided and notified KRW 9,545,920 for the transfer income tax of 2007 and KRW 920 for the reason that the Plaintiff had not resided in the instant house for more than two years (in the review of the legality before the taxation, the total amount of KRW 1,050,00 for brokerage commission, acquisition tax and registration tax, etc. was recognized as necessary expenses).

C. After all, in the objection procedure against the above disposition of capital gains tax, the amount of capital gains tax was reduced to KRW 3,100,520 as necessary expense and the amount of capital gains tax was reduced to KRW 8,930,520 (hereinafter referred to as the "disposition in this case") in total, including 1,200,000,000, urban gas pipelines installation costs, 450,000, and 550,000,000.

[Ground of recognition] Facts without dispute, Gap evidence 1 to 3, Eul evidence I and 2, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The plaintiff asserts that the disposition of this case, which reported differently, is unlawful, although it falls under the requirements for non-taxation for one household or necessary expenses in calculating transfer margin due to the following reasons.

(1) Since the Plaintiff owned 18 years or more of the instant house, it is necessary to exempt the Plaintiff from taxation as one house for one household even if it did not meet the requirements for residence. Moreover, applying the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 21031, Feb. 4, 2009; Presidential Decree No. 21031, hereinafter the same) amended thereafter, demanding that the Plaintiff reside at the time of acquiring the instant house violates the principle of prohibition of retroactive taxation, equality rights, or property

(2) Even if not, in calculating the transfer margin of the instant house, (i) the calculation of the transfer margin of the instant house, (ii) the toilet repair cost, the wall waterproofing cost, the outdoor water pipeline replacement cost, (ii) the external joint repair cost, (iii) the internal repair cost, the external repair cost, the board and the exhausting cost, and (iv) the cost of moving the tenants, (iv) the transportation cost, and (v) the expenses of the tenants, (iv) the interest on debentures and the termination cost of the mortgage, the capital gains tax base return cost, and the cost of making a return of the capital gains tax base, and the cost of making a return of the capital gains tax base,

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

(1) The Plaintiff acquired the instant house on February 22, 1989, and transferred the instant house on December 20, 2007.

(2) The Plaintiff did not reside in the instant house during the retention period of the instant house.

[Grounds for recognition] Gap evidence Nos. 1 through 3, Eul evidence Nos. 1 through 7, and the purport of the whole pleading is determined.

(i)one house for one household;

However, in order for a resident to receive non-taxation as one house for one household if he/she owns a house located in Seoul Special Metropolitan City, he/she must own a house for at least three years under the provisions of Article 89(1) of the former Income Tax Act (amended by Act No. 9897, Dec. 31, 2009; hereinafter the same shall apply) and Article 154(1) of the former Enforcement Decree of the Income Tax Act, and reside for at least two years during the retention period. This case’s health house of this case where the Plaintiff had been located in Seoul Special Metropolitan City for at least three years, but he/she did not reside for at least two years during the retention period, and thus, the Plaintiff did not meet the requirements for non-taxation for one house of this case. In addition, the Plaintiff’s provision on non-taxation for taxation purposes or the principle on non-taxation for taxation purposes cannot be applied to the Plaintiff’s non-taxation for a certain period of time due to the enactment or revision of tax-related laws and regulations or the modification of guidelines for taxation for the Plaintiff’s houses.

(2) Whether necessary expenses are deducted

(A) Legal principles

Article 97 (1) of the former Income Tax Act provides that "acquisition value (actual transaction value incurred in acquiring assets), "capital expenditure, etc. prescribed by Presidential Decree", and "transfer expenditure, etc. prescribed by Presidential Decree" to be deducted from the transfer value. Article 163 (3) of the former Enforcement Decree of the Income Tax Act provides that "capital expenditure, etc. prescribed by Presidential Decree" shall be "capital expenditure, etc. prescribed by Presidential Decree" calculated by applying mutatis mutandis the provisions of Article 67 (2) and 1.

(B) The costs of the Plaintiff’s assertion (1) through (3)

① The Plaintiff is using the cost of water leakage detection, toilet repair cost, wall waterproof cost, outdoor water pipe replacement cost, ② outside and water tank replacement cost, ③ outside joint repair cost and internal repair cost, board board and exhaust cost. The term “capital expenditure” under Article 67(2) of the former Enforcement Decree of the Income Tax Act refers to repair cost disbursed to extend the service life of depreciable assets owned by a business operator or to increase the real value of the relevant assets, and includes expenses as provided in any of the following subparagraphs. 1. 4. Construction of heating, cooling and heating equipment on February 1, 200 for changing the original purpose. 4. Construction of heating and cooling equipment on building 3. 5. Other improvement, expansion, enlargement, etc., which are similar in nature to those under subparagraphs 1 through 4, which have no useful value for the original purpose of the relevant assets due to a disaster, and eventually, it is necessary for the Plaintiff to prove the above tax base of capital gains tax to increase its legitimate value as necessary expenses.

In this case, it is not sufficient to recognize that the Plaintiff paid the expenses of the above paragraphs (1) through (3) for the purpose of the alteration, improvement, or convenience of the use of the housing of this case, or that each of the above expenses constituted necessary expenses, on the sole basis of the descriptions and videos of the evidence Nos. 4-1 through 13, Gap No. 6, and 10. The plaintiff's assertion is without merit.

(C) The costs of the Plaintiff’s assertion (4) through (5)

④ The Plaintiff is seeking for a change in the cost of moving the Plaintiff’s director. (5) The Plaintiff’s expenses for moving the Plaintiff’s director. (6) The Plaintiff’s expenses for moving the interest in the bonds and the termination of the right to collateral security. Article 163(5) of the former Enforcement Decree of the Income Tax Act provides that “The expenses prescribed by the Presidential Decree, such as transfer expenses, etc.” under Article 97(1)4 of the Act is “the expenses directly paid for transferring the assets under each subparagraph of Article 94(1) of the Act.” In addition, the said expenses cannot be deemed as those directly paid for transferring the instant house. Moreover, it is insufficient to recognize that the entries in subparagraphs A through 10 alone made the Plaintiff to disburse the expenses under the above paragraphs (4) through (6) or each of the said expenses constituted necessary

(D) Costs of the Plaintiff’s assertion 7

7. Article 97(1) of the former Income Tax Act provides that “acquisition value (actual transaction value for acquisition of assets) shall be deducted from the transfer value of the asset.” Article 89 of the former Enforcement Decree of the Income Tax Act provides that “The asset purchased from another person shall be added to the purchase value, acquisition tax, registration tax, and other incidental expenses.” As alleged by the Plaintiff, it is a matter of whether the interest on the mortgage, which was borne in the course of purchasing the instant house, can be deemed as including the acquisition tax or registration tax, and other incidental expenses. In light of the principle of no taxation without the law, the interpretation of the statutes on the requirements for tax exemption, non-taxation, or tax reduction or exemption, as alleged by the Plaintiff, should be interpreted as the legal basis to recognize the interest on the collateral security as necessary expenses. If the interest on the loan of a financial institution used as the means of payment of the purchase price, which is a separate transaction unrelated to the transfer value, and if the acquisition value is recognized as the acquisition value, the Plaintiff’s assertion that it does not constitute evidence or tax imbalance between the person who acquired the financial expense and the above.”

(E) The costs of the Plaintiff’s assertion 8

8) The Plaintiff is seeking capital gains tax base return cost, contract preparation cost, stamp stamp, and brokerage cost to be recognized as necessary expenses.

8) The above costs were added to one of necessary expenses under Article 163(5)(b) of the Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 21301, Feb. 4, 2009; however, the above provision is applied to the first transfer after the enforcement of the amended Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 3), and the above revised Enforcement Decree of the Income Tax Act does not apply to this case that was transferred before the enforcement of the amended Enforcement Decree. Furthermore, it is insufficient to recognize that the Plaintiff paid the above expenses or the above expenses constituted necessary expenses solely with the statement of the evidence No. 6 or No. 10, and there is no evidence to acknowledge otherwise. The Plaintiff’s assertion is without merit

(e)Indivate;

Therefore, the instant disposition made by the Defendant on the same premise is lawful.

3. Conclusion

Therefore, the plaintiff's claim shall be dismissed as it is without merit, and the judgment of the court of first instance shall be just and it shall be dismissed as it is so decided as per Disposition.