Whether it constitutes a newly-built house under Article 99-2 (1) of the Restriction of Special Taxation Act

This donation contract was not rescinded, and the plaintiff is merely a donation of a part of the newly-built house from the spouse, and is not a "the first sales contract" under Article 99-2 (1) of the Restriction of Special Taxation Act.

Article 99-2 of the Restriction of Special Taxation Act

Suwon District Court 2018Gudan6380 Revocation of Disposition of Imposing Capital Gains Tax

AA

BB Director of the Tax Office

August 29, 2018

o October 10, 2018

1. The plaintiff's claim is dismissed.

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

1. Basic facts

A. Reasons for the registration of transfer of ownership in the name of the plaintiff couple

1) On August 9, 2013, the Plaintiff’s husband KimCC entered into a contract with Nonparty Corporation to purchase the instant house in KRW 329,460,00,00, and received from V market on September 30, 2013 a seal from V market confirming that the instant house is a newly-built house, etc. or an existing house subject to abatement or exemption.

2) On July 12, 2016, prior to the due date for the remainder of the occupancy deposit, KimCC agreed to donate 95% of the share of the instant house to the Plaintiff (hereinafter “instant donation”), and on the same day, the Plaintiff, the public corporation, and the KimCC concluded a contract for the succession of rights and obligations (hereinafter “instant succession contract”) with the intent to obtain approval from the non-party corporation for the Plaintiff’s share of the instant house from the non-party corporation.

3) After August 22, 2016, the Non-Party Corporation filed a registration of preservation of ownership on the instant housing on August 22, 2016, and on August 29, 2016, the Plaintiff and KimCC for each share (95/100 of the Plaintiff’s share, 100 of the KimCC shares 10

5/10) completed the registration of ownership transfer by type.

4) On the other hand, on August 29, 2016, KimCC: (a) concluded a registration to establish a neighboring mortgage on the instant housing with a debtor to DDR; (b) the Plaintiff and KimCC rescinded the instant donation agreement by means of a notarial act on the same day; (c) on September 2, 2016, the Plaintiff and KimCC rescinded the instant donation agreement; (d) notified Nonparty Corporation of the cancellation of the instant donation agreement; (b) notified Nonparty Corporation of the cancellation of the said agreement on succession to rights and obligations; and (e) notified Nonparty Corporation of the completion of the procedures for the registration of ownership transfer on September 1, 2016 from Nonparty Corporation, that the instant housing was subject to the registration of ownership transfer under the sole name of KimCC (Evidence 3-1).

B. Details of the disposition of the instant house

1) On October 7, 2016, the instant housing was entered into a contract with the maximum EE and NAF to sell KRW 530 million. A contract with the Plaintiff’s joint seller (Article 8-1, hereinafter referred to as “instant contract”) and a contract with the Plaintiff’s joint seller (Article 8-2, hereinafter referred to as “instant contract”) to sell the instant housing independently from the KimCC (Article 8-2, hereinafter referred to as “instant contract”).

2) On October 17, 2016, the Plaintiff husband and wife completed the registration of ownership transfer with respect to two-thirds of the shares of the Plaintiff husband and wife among the instant housing on the maximum E and F.

3) On December 12, 2016, the Plaintiff couple reported to the Defendant on December 12, 2016 the transfer income tax reverted to the year 2016 by applying the reduction or exemption of transfer income tax pursuant to Article 99-2(1) of the Restriction of Special Taxation Act.

C. However, on June 7, 2017, the Defendant rejected an application for reduction or exemption of capital gains tax on the ground that the Plaintiff acquired part of the right to sell the instant housing by donation from KimCC, and did not have been subject to reduction or exemption of capital gains tax under Article 99-2(1) of the Restriction of Special Taxation Act, but corrected and notified the Plaintiff of capital gains tax of KRW 78,89,118 (including additional tax) for the year 2016 (hereinafter “instant disposition”).

D. The Plaintiff appealed and filed an appeal with the Tax Tribunal on September 18, 2017, but the Tax Tribunal dismissed the Plaintiff’s appeal on December 6, 2017.

[Ground of recognition] Unsatisfy, Gap evidence 1 through 10 (including each number in case of additional number), Eul evidence 1 and 2, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(i) Chapter 1;

According to Articles 4(4) and 68(1) of the Inheritance and Gift Tax Act, where a contract of donation is rescinded and the property donated is returned within three months from the end of the month to which the date of donation belongs, it shall be deemed that there was no donation from the beginning. The Plaintiff was unlawful in the disposition of this case imposing capital gains tax on the Plaintiff, notwithstanding the fact that the Plaintiff was not subject to the registration of the transfer of ownership by KimCC, since the Plaintiff was not subject to the registration of the transfer of ownership by KimCC, but the Plaintiff was not subject to the registration of the transfer of ownership. However, the Plaintiff was not subject to the registration of the transfer of ownership in the name of the Plaintiff, since KimCC was not subject to the registration of the transfer of ownership in the name of the Plaintiff, and the registration of the transfer of ownership was not subject to the registration of the transfer of ownership in the name of the Plaintiff.

(ii) Chapter 2;

Even if the donation of this case still remains valid, Article 99-2(1) of the Act on Special Cases concerning Taxation Restriction cannot be deemed as having multi-family housing holding multi-family housing on the ground that the purpose of legislation is to revitalize the real estate market through reduction and exemption of capital gains tax, and the Plaintiff, a member of the household, who constitutes KimCC and a household, owns the instant house in their own shares. Considering the trust at the time of the purchase of the instant house and the circumstances where the Plaintiff was to receive some shares among the instant house, etc., in cases of a newly-built house subject to reduction and exemption of capital gains tax pursuant to Article 99-2(1) of the Act on Special Cases concerning Taxation Restriction, even if KimCC, the first buyer, who is the spouse of the same household, has donated some shares of the right to purchase

Therefore, the instant disposition imposing capital gains tax on the Plaintiff is unlawful.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination as to the First Claim

In full view of the facts recognized as above and the presumption of registration, the Plaintiff acquired shares in the name of the Plaintiff among the instant housing pursuant to the instant donation contract and the succession contract, and thereafter registered cancellation of the registration for the transfer of shares in the name of the Plaintiff on the instant housing, and then returned to the name of the Nonparty Corporation, and the KimCC had KimCC completed the registration for transfer of shares in the name of the Plaintiff on the instant housing, so it is apparent that the Plaintiff entered into a contract for sale of shares in the instant housing and completed the registration for transfer of shares in the name of the Plaintiff on the instant housing and completed the registration for transfer of ownership in the name of the Plaintiff, without implementing such contract.

In contrast, on August 29, 2016, the Plaintiff agreed to cancel the instant gift contract. The Plaintiff did not own shares in the Plaintiff’s name among the instant housing solely on the ground that the instant contract was prepared along with the instant contract No. 1, and it is difficult to deem that the Plaintiff did not transfer shares in the Plaintiff’s name among the instant housing.

Therefore, this part of the plaintiff's assertion is without merit.

D. Determination as to the second proposal

According to Article 99-2 (1) of the Restriction of Special Taxation Act, where a person prescribed by Presidential Decree, such as a project undertaker who supplies a house of a newly-built house, house unsold in lots, or house owned by one household under Article 54 of the Housing Act, and a person who has entered into the first sale contract has transferred the house of the newly-built house, etc. in compliance with the above requirements, capital gains tax

According to the above facts, the plaintiff's husband and wife did not acquire "one house of one house owner" as stated in Article 99-2 (1) of the Restriction of Special Taxation Act, and KimCC entered into a contract for the first time to purchase "newly-built house". The plaintiff was merely a donation of a part of the newly-built house from KimCC and was not a "the first sale contract". Although KimCC, which is the donor, is the plaintiff's husband, it is not a acquisition of a sale right by the specific succession, such as inheritance, but the plaintiff acquired a sale right by the way of the first sale contract. It is not a "the first sale contract". Accordingly, the disposition of this case is legitimate, and the plaintiff's assertion of this part is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is accepted as it is without merit, and it is so decided as per Disposition.