Seocho 2013west 4007 (O2.03)

In fact, a building used for business shall not be subject to capital gains tax exemption on one house for one household.

It is reasonable to see that the lease to a business operator who intends to obtain profit by operating a lodging house is a building actually used for business.

Article 89 (Non-Taxable Capital Gains)

2014Gudan52902

HoA and 1

Head of Seodaemun Tax Office

November 05, 2014

oly 14, 2015

1. All of the plaintiffs' claims are dismissed.

2. The costs of lawsuit are assessed against the plaintiffs.

Cheong-gu Office

The defendant's rejection disposition against the plaintiffs on February 14, 2013 is revoked.

1. Details of the disposition;

A. On February 17, 1987, the Plaintiffs acquired each 1/2 shares of the instant land and buildings on the 1/2 shares of ○○○○○○○○○-dong, ○○○○○○○○○, 145.5 square meters, 158.7 square meters (hereinafter collectively referred to as “instant land”) and the 4th floor above the ground (the use by each floor is as listed below; hereinafter referred to as “instant building”). On August 31, 2012, the Plaintiffs transferred the instant land and buildings to ○○○○○○○○○○○○, a school juristic person (hereinafter referred to as “instant building”).

Table 1. The area and purpose of use by floor of the building in this case (unit size):

Classification

Area

public account purposes

argument

Jinay

Underground floor

218.61

Neighborhood Facilities

Housing (nive accommodation)

Disputes

1th floor

124.78

Neighborhood Facilities

Housing (nive accommodation)

Disputes

25.58

Parking Lots

2nd floor

150.36

Neighborhood Facilities

Housing (Lessee)

3rd floor

150.36

Housing:

4th floor

150.36

Housing:

Roto tower floor

15.47

Rools

Total

835.52

B. On October 31, 2012, the Plaintiffs filed a preliminary return on capital gains tax to the Defendant on or around October 31, 2012

Pursuant to the current status of the building, the third and fourth parts of the building in this case shall be "Housing", and the underground floor and the first and second floors shall be "other."

After being divided into "building", for the third and fourth parts, the tax amount (Plaintiff HoA ○○○○○○, Plaintiff Lee ○○○○○○○○○○○) was calculated by applying the special long-term holding deduction as a neighborhood living facility for the first and second parts as one house for one household, which is non-taxable (high-priced), underground floors, and the first and second parts.

C. Since January 23, 2013, the Plaintiffs were the Defendant’s underground floors and the first and second floors of the instant building.

Since it was used as a house, the entire building of this case is regarded as a house and its long-term possession characteristics.

Reduction of the tax amount subject to separate deduction (Plaintiff HoA ○○○○○, Plaintiff Lee ○○○○○)

The request for correction was made.

D. On February 14, 2013, the Defendant: (a) on February 14, 2013, to the Plaintiffs; and (b) on-site verification of the building

It is difficult to regard the actual use of the underground floor, the first, and the second floor as a house, and to refuse the above request for correction.

The ruling and notification(hereinafter referred to as the "disposition of this case") were made.

E. The Plaintiffs are dissatisfied with the Plaintiffs and filed an objection on May 16, 2013, and the Tax Tribunal on September 13, 2013.

The appeal was filed on February 3, 2014, but was dismissed on February 3, 201, and May 2, 2014

The proposal was filed.

Each description of Gap's 1, 2, 8, 9, 10 (including each number; hereinafter the same shall apply) without any dispute for recognition;

2. Whether the disposition is lawful;

A. Summary of the plaintiff's assertion

1) The second floor of the instant building was the lessee ○○ and his family members living, and the underground floor and the first floor were the first floor of the instant building.

Ma○○ was a university student, etc. Accordingly, not only the second floor, but also the underground floor and the first floor.

housing is used for residence.

2) The underground floor and the first floor of the instant building are not housing, but housing lower than the second floor only.

In addition, the part of the instant building, which is a house, is 451.08 square meters (150.36 square meters for two floors + 150.36 square meters for three floors + 150.36 square meters for four floors. 150.36

Since the area of a building exceeds 417.76 square meters (total 835.52 square meters ¡À2), the entire building is considered to be a house pursuant to Article 154(3) of the Enforcement Decree of the Income Tax Act.

3) Therefore, the entire building of this case is regarded as a house, and is exempt from taxation as one house for one household (a high house).

The defendant's disposition of this case based on the different premise is unlawful, although the defendant's disposition of this case was applied.

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

The following facts may be acknowledged in full view of the aforementioned evidence: Gap 3 through 7, 11 through 15, Eul 1 through 8, Eul 1 through 8, and the purport of the testimony and the whole argument of the witness ○○○.

1) The instant building was approved for use on May 31, 1986, and purchased and acquired by the Plaintiffs on February 17, 1987. The building site basements, part of the first floor, and second floor are neighborhood living facilities, and the building was used.

There has been no change since then.

2) On August 1, 2002, Ho○○ had resided in the underground floor, 1, and 2nd floor of the instant building from the Plaintiffs to around 2012 by leasing them to other families, and had been accommodated in the underground floor, 1, and part of the first floor, 2nd floor to the college students, etc., or sublet the room to the self-employed. The instant building has nine rooms on the underground floor, 1, and 2nd floor, respectively, and there are several public living rooms, toilets, toilets, and kitchen rooms on each floor. This structure was the same before ○○ leased the instant building in 202, and regular ○○ intended to set up the second floor, but it was refused by the Plaintiffs, even though ○○ refused by the Plaintiffs.

3) Meanwhile, the 3 and 4th floor of the instant building were resided respectively by other lessees, and are also registered in the building ledger.

D. Determination

1) According to the provisions of the Income Tax Act and subordinate statutes, capital gains tax shall be imposed on the income accrued from the transfer of assets, such as land and buildings: Provided, That if certain requirements, such as one house for one household, etc. meet the requirements, capital gains tax shall not be imposed, or a certain amount among gains from transfer shall be reduced or exempted. Under the principle of no taxation without the law, the interpretation of tax laws and regulations shall be interpreted in accordance with the law, barring any special circumstances, and it is not permissible to expand or analogically interpret without the reasonable reason. In particular, it is consistent with the principle of fair taxation (see, e.g., Supreme Court Decision 2008Du11372, Aug. 20, 209). In addition, Article 89(1)3 of the Income Tax Act provides that “one house for one household as prescribed by the Presidential Decree” and “the income accruing from the transfer of land,” and Article 89(1)3 of the Housing Act provides that a long period of time is not imposed on the income accruing from a residential building or residential building’s land attached to the head.

2) In light of such legal principles, the underground floor, the first, and the second floor of the instant building are Article 89(1) of the Income Tax Act

In light of whether a person falls under "house" referred to in subparagraph 3, a number of facts of such recognition can be found.

In other words, circumstances. ① The 3th floor and the 1st floor and the 2nd floor were a house from the time of initial construction on 1986; the 2nd floor and the 2nd floor were approved for use by dividing them into neighborhood living facilities; the 1st floor and the 2nd floor were currently used for the 2002nd floor; ② the 3th floor from the time of purchase of the building in this case in 1987 or from the 2002nd to the 3rd and the 2nd floor were leased to the person who intends to operate the 2nd floor; ③ the 1st floor and the 2nd floor of the building in this case were to be leased to the person who intends to operate the 2nd floor and the 2nd floor were to be used for the 2nd floor to the maximum extent possible; ③ the 2nd floor and the 2nd floor were to be used for the 1st floor and the 2nd floor were to be used for the 2nd floor.

(On the other hand, it is recognized that the lessee, ○○ and his family members had lived in using a certain part of the second floor of the instant building. From the perspective of the Plaintiffs, the Plaintiffs leased the “actual commercial building”, and the lessee had lived in the same place without changing the structure suitable for his business at all.

C. In light of the legislative intent of the capital gains tax reduction and exemption system for one house for one household, barring special circumstances, such circumstance alone is insufficient to reverse the aforementioned determination, barring such circumstances as where the lessee was a business owner, namely, the purpose of the general residence, namely, the structure of the building where the lessee was a business owner, changing the structure that allows the members of the household to live an independent residential life for a long time, and the lessor

3) Therefore, there was no error in the Defendant’s disposition on the premise that the underground floor, the first, and the second floor of the instant building were not housing.

4. Conclusion

Ultimately, the plaintiffs' claim of this case is without merit, and it is so decided as per Disposition.