Cho High Court Decision 2009Du3743 (O. 11, 2010)

Rental housing is not excluded from the number of houses when determining non-taxation for one household;

To exclude rental housing owned by a rental business operator from the number of houses owned by him/her when determining whether the rental housing owned by the rental business operator is non-taxable, it should constitute 'newly-built rental housing' under Article 97-2 (1) of the Restriction

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposing KRW 64,693,430 on the Plaintiff on October 1, 2009 is revoked.

1. Circumstances of the disposition;

A. On December 26, 1994, the Plaintiff acquired from thisA the 119 Hanyang apartment 95-130l (hereinafter “the apartment of this case”) in Siposi-dong 119, the Plaintiff did not report the transfer income tax while transferring the apartment of this case to 387,000,000 won on December 10, 200, while holding that it is one house owner and the said transfer is subject to one tax exemption provision under Article 89 subparagraph 3 of the Income Tax Act.

B. However, in fact, the Plaintiff completed the registration of rental business under the Rental Housing Act on December 6, 199, and the registration of rental business under the Income Tax Act on January 5, 200 to the Defendant on January 5, 200. At the time of the transfer of this case, at the time of the transfer of this case, the Plaintiff operated the housing rental business by holding a total of 3 rental apartments (hereinafter referred to as 'a, 2, and 3 apartments' as follows.

C. After investigating the transfer income tax on the Plaintiff around July 2008, the Defendant deemed the Plaintiff as three houses for one household (the instant house and the first and second apartment houses) under Article 89 of the Income Tax Act, and calculated the transfer value as the actual transaction value of 387,00,000, and the acquisition value as 215,598,751 won (Conversion value) on October 1, 2009, on the ground that only the said three apartment houses constituted rental houses excluded from the number of houses owned when determining whether to grant non-taxation for one household pursuant to Article 97-2(1) and (2) of the Restriction of Special Taxation Act (hereinafter “Special Taxation Act”). The Defendant rendered a decision on October 1, 2009 that the transfer value of the Plaintiff was 387,00,000,000,000 won, as the actual transaction value was 215,593,430 won, including the additional tax, 3,841,424,27, and 27.

D. The Plaintiff appealed and filed an appeal with the Tax Tribunal on October 21, 2009, but was decided to dismiss the appeal on March 11, 2010, and filed the instant lawsuit on May 3, 2010.

[Reasons for Recognition] Facts without dispute Gap evidence Nos. 1 through 3 (including each number), the purport of the whole pleadings

2. Whether the disposition is proper; and

A. The plaintiff's principal

① According to Article 97(2) of the Restriction of Special Taxation Act, which applies mutatis mutandis pursuant to Article 97-2(2) of 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 subparagraph 3 of Article 89 of the Income Tax Act. In determining whether to grant non-taxation, rental housing does not satisfy Article 97-2(1) of the Special Taxation Act. Therefore, rental apartment owned by the Plaintiff is excluded from the number of houses at the time of determining non-taxation of one house for one household pursuant to Article

② In accordance with Article 6(1) of the Enforcement Decree of the Rental Housing Act amended on November 12, 1999, the Plaintiff registered as a rental business operator at the time when the scope of rental business operators and registration criteria are more than 5 units of housing ownership requirements less than 2 units of housing ownership requirements. Thus, the instant disposition violates the protection of trust.

③ Even if the Plaintiff’s assertion regarding the principal tax of the instant disposition is groundless, the penalty tax for nonperformance of reporting or the penalty tax for insincere payment is unlawful.

(b) Statutes;

It is as shown in the attached Table related statutes.

C. Determination

(1) As to the argument

(A) First of all, Article 97 of the Restriction of Special Taxation Act that applies to the case where the Plaintiff’s rental housing owned more than five units of rental housing as total 3 units does not apply to the transfer of this case (Article 97(1) of the Enforcement Decree of the Restriction

(B) In full view of Article 97-2 (1)-2 (2) of the Restriction of Special Taxation Act, to exclude rental houses owned by the Plaintiff and the same rental business operator from the number of houses owned at the time of determination of non-taxation, the rental houses among newly constructed rental houses shall be deemed to fall under the "newly-built rental houses under Article 97-2 (1) of the Restriction of Special Taxation Act." Furthermore, the constructed rental houses among newly built rental houses shall be deemed to have been newly built after August 20, 199 or newly built before August 19, 199 and they were newly built before August 20, 199, and they shall not have been occupied as of August 20, 199, and the purchased rental houses shall be deemed to have been newly built after August 20, 199 or newly built before August 19, 199, which was not occupied as of August 20, 199 as of August 20, 199 as follows.

① Apartment No. 1 is purchased rental housing because the Plaintiff did not first acquire it, and the time of acquisition is before December 14, 1994 and before August 20, 199, it is included in the number of houses owned when determining whether one house for one household is non-taxable.

② The apartment house No. 2 is a purchased rental house acquired on June 9, 2001 by the Plaintiff. According to the evidence No. 2, the apartment house was newly built on July 23, 1993, but is included in the number of houses owned at the time of determining whether one household is non-taxable, in light of the resident registration period of the former owner of thisA (from July 1, 1993 to May 21, 2001).

③ An apartment on three occasions is not included in the number of houses owned at the time of determining whether one house is non-taxable for one household, following the acquisition date on December 22, 2000.

(2) As to the argument

In light of the fact that the purpose of amendment of the Restriction of Special Taxation Act and the Rental Housing Act differs from the legislative purpose and scope of application, and that the Rental Housing Act is not listed in the law that allows special taxation under Article 3 of the Restriction of Special Taxation Act, the Rental Housing Act is not listed. Thus, it is difficult to view that the defendant acquired the trust of exclusion from the house owned by the plaintiff from the house owned by the plaintiff when determining one household's total 3 apartment houses. Thus, this part of the plaintiff's assertion is without merit.

(3) As to the assertion

In order to facilitate the exercise of taxation rights and the realization of tax claims, additional tax under tax law is an administrative sanction imposed in accordance with the law in cases where a taxpayer violates a tax return and tax liability, etc. as prescribed by the law without justifiable grounds, and it is unreasonable for the taxpayer to be unaware of his/her duty, and it is not reasonable for the taxpayer to be aware of his/her duty, and there are circumstances where it is unreasonable for the taxpayer to expect the performance of his/her duty to pay taxes or where there is a justifiable reason not to be attributable to his/her duty to pay taxes (see Supreme Court Decision 2001Du4849, Nov. 8, 2002).

The plaintiff's assertion on this part is without merit because administrative sanctions do not require the taxpayer's intention or negligence, and the land or mistake of statutes does not constitute justifiable grounds.

3. Conclusion

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