1. A household fails to meet the requirements for non-taxation;

An officetel shall be determined by whether the actual purpose of use is a building actually used for residence, regardless of the classification of use in the public register of the building.

Scope of one house for one household under Article 154 of the Enforcement Decree of the Income Tax Act

2015Gudan50723 Revocation of Disposition of Imposing capital gains tax

Gangwon ○

○ Head of tax office

March 15, 2016

April 26, 2016

1. The plaintiff's claim is dismissed.

2. Litigation costs shall be borne by the Plaintiff

Cheong-gu Office

Defendant’s imposition of KRW 64,461,810 on the Plaintiff on December 1, 2014, as capital gains tax of KRW 64,461,810 for the year 2014.

Sector shall be revoked.

1. Details of the disposition;

A. On August 23, 198, the Plaintiff acquired ○○○-dong ○○○○-dong ○○○○○○-dong ○○○○ (hereinafter “instant house”) on December 5, 2002, and respectively acquired ○○○○○○-dong ○○○○○○-dong ○○○○○○○-dong ○○○○○○-dong dong 1202, 1206, and 1214 (hereinafter “instant officetel 1202, 1206, and 1214”).

B. On April 4, 2014, the Plaintiff: (a) determined that the instant house constitutes a single house for one household and thus constitutes a non-taxable object; (b) subsequently, the Plaintiff scheduled the transfer income tax for the year 2014 as zero won.

C. On December 1, 2014, the Defendant: (a) deemed that the instant officetel 1202, 1206, and 1214 owned by the Plaintiff at the time of the transfer of the instant house were multi-family housing owners on the ground that they were used for residential purposes; and (b) determined and notified KRW 64,461,810 of the transfer income tax for the year 2014 (hereinafter “instant taxation disposition”).

D. The Plaintiff filed an appeal with the Tax Tribunal on February 17, 2015, but was dismissed on May 4, 2015.

Facts that there is no dispute with recognition, Gap Nos. 1, 2, Eul Nos. 1 through 3 (including Serial number), the purport of the whole pleadings.

2. Whether the disposition is lawful;

A. The plaintiff's assertion

(1) Article 89 of the Income Tax Act provides only one house for one household as prescribed by the Presidential Decree among non-taxable capital gains, and Article 154 of the Enforcement Decree of the Income Tax Act stipulates that Article 89 of the Income Tax Act is embodied to some extent, but entirely entrusts to the "standards for Execution of Transfer Income Tax without legal binding force" in relation to the instant disposition, so the instant taxation based on the above criteria is illegal disposition contrary

(2) In light of the fact that the instant officetels 1202, 1206, and 1214 are used by tenants for non-residential purposes, and that the Enforcement Decree of the Building Act is expected to allow them to board and lodge a part of the officetels, and that the instant officetel 1202, 1206, and 1214 are determined by the purpose of public account in cases where the purpose of use is unclear even in the above capital gains tax enforcement guidelines, the instant officetel 1202, 1206, and 1214 do not interfere with the application of non-taxation for one household because the instant officetel 1202, 1206, and 1214 constitutes a business asset. Therefore, the instant taxation

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

(1) The assertion that it goes against the principle of no taxation without law

(A) The Constitution declares the principle of no taxation without the law (Article 38 and 59 of the Constitution) by stipulating that all citizens shall be liable to pay taxes under the conditions as prescribed by law, and the items and rates of taxes shall be determined by law (Article 38 and 59 of the Constitution). The principle of no taxation without the law shall be applied not only to the provisions on the imposition and collection of taxes, but also to the provisions on tax reduction and exemption. The principle of no taxation without the law is the core contents of the principle of no taxation without the law and the principle of clarity of the requirements of tax exemption and exemption.

(B) As to the instant case, Article 89(1)3 (a) of the Income Tax Act provides that no tax shall be imposed on the income accruing from the transfer of one house for one household as prescribed by the Presidential Decree. Article 154(1) of the Enforcement Decree of the same Act provides that "one house for one household prescribed by the Presidential Decree" under Article 89(1)3 (a) of the same Act means that a household comprised of a resident and his/her spouse together with his/her family members who make a joint living at the same address or same place of residence has one house in Korea as of the date of transfer and one household comprised of a resident and his/her spouse has two years or more.

The purport of this provision is that no income tax is imposed on the income accrued from the transfer of one house for one household is the basis of a citizen's residential life. Thus, in certain cases where the transfer of one house owned by one household in Korea is deemed not to be a transfer income, or temporarily residing or owned for the purpose of speculation, and thus, it is intended to guarantee a citizen's residential stability and freedom of residence transfer by failing to impose income tax on the transfer income (see, e.g., Supreme Court Decision 2000Du10465, Sept. 28, 2001). Therefore, in interpreting the above provision of the above provision of the statutes in light of such legislative purport, the meaning and scope of one house for one household, which is non-taxation requirement, can be easily expected. Thus, since the non-taxation requirement of one house for one household is too abstract and ambiguous, or entirely entrusted with the criteria for the execution of transfer income tax without legal binding force, it cannot be deemed that arbitrary interpretation and enforcement by the tax authorities may not be caused. Thus, the plaintiff's assertion in this part of this premise is without merit.

(2) The instant officetel’s assertion that it was not a house

(A) In a case where a person who transfers a house owns another building, whether the other building constitutes “house” as prescribed by Article 89(1)3 of the Income Tax Act and Article 154(1) of the Enforcement Decree of the same Act shall be determined by whether the actual purpose of use is a building actually offered for residence regardless of the classification of the use of injury to the building (see, e.g., Supreme Court Decision 87Nu584, Sept. 8, 1987). Moreover, non-taxation excludes a specific object from the taxable subject of tax policy as an exception and special fact on the taxpayer’s side, and thus, the burden of proof for the requirements for non-taxation, exemption, and exemption is non-taxation (see, e.g., Supreme Court Decision 98Du16095, Jul. 7, 2000).

(B) In light of the following circumstances, i.e., the tenant ○○○ Office’s 2-Otel’s 1-6-1-6-6-1-6-2-6-2-6-2-6-2-6-2-6-2-6-7-7-7-7-7-7-7-7-7-7-7-7-7-7-1-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-1-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-

Therefore, the instant taxation disposition based on the premise that the instant housing is not one house for one household, which is exempt from taxation, is legitimate, and the Plaintiff’s assertion on this different premise is not reasonable.

3. Conclusion

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