Cho-2017-C-1179 (Law No. 19, 2017)

Whether the instant officetels was used for non-business purposes for non-business purposes, and the Plaintiff’s transfer of the instant apartment is not subject to non-taxation for one house for one household.

Since it was confirmed that the internal facilities of the instant officetel were used for residential purpose as well as for the use of it for residential purpose by the tenant's testimony, it is legitimate for the Defendant to take the instant disposition on the premise that each of the instant officetels constitutes "house".

Article 100 of the Income Tax Act, Article 166 of the Enforcement Decree of the Income Tax Act

Disposition to impose capital gains tax

00

00. Head of tax office

on October 24, 2018

on 06 05 October 2018

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition on December 1, 2016 on the imposition of the capital gains tax belonging to the year 2016 against the Plaintiff is revoked. The imposition of the capital gains tax corresponding to the transfer income tax belonging to the Plaintiff shall be revoked.

1. Details of the disposition;

A. On December 28, 1992, the Plaintiff acquired and owned OO-dong 1053-4 O-dong O-dong O-dong O-dong O-dong O-dong O-dong O-dong O-dong O-dong O-dong O-dong O-dong O-dong O-dong O-dong O-dong O-dong O-dong O-ship on April 22, 201

B. On April 28, 2016, the Plaintiff filed a return on the tax base of capital gains tax with the purport that the transfer of the instant apartment to the Defendant is a transfer of one house for one household as prescribed by Article 89(1)3(a) and Article 154(1) of the Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 27829, Feb. 3, 2017; hereinafter the same shall apply).

C. However, the Defendant: (a) on December 1, 2016, concluded that the transfer of the instant apartment does not constitute one house for one household under Article 89(1)3(a) of the Income Tax Act; and (b) on December 1, 2016, that the transfer of the instant apartment does not constitute one house under Article 154(1) of the Enforcement Decree of the same Act; and (c) on December 1, 2016, the Defendant imposed and notified the Plaintiff of the transfer income tax of KRW x,x,x,xxx (including additional tax) on the Plaintiff (hereinafter referred to as “instant disposition”).

D. The Plaintiff dissatisfied with the instant disposition and filed an appeal with the Tax Tribunal on February 22, 2017, but the Tax Tribunal dismissed the Plaintiff’s appeal on June 19, 2017.

[Ground of recognition] Facts without dispute, Gap evidence 1, 6, 7, Eul evidence 1, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff leased each of the instant officetels for business purposes, and at the time of the transfer of the instant apartment, the lessee of each of the instant officetels did not use it as a house. The instant disposition made on a different premise is unlawful.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

(1) In a case where the transferor of a house owns another building, whether the other building constitutes “house” under 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 the building actually being used for residence regardless of the usage classification of the injury to the building. Even if the other building is temporarily used for non-residential purposes, it shall be deemed as a house for each of the instant cases where the Plaintiff or a third party is in a state of suitable residential conditions, such as the structure, function, and facilities, and the residential function is maintained and managed as they are, and it shall be deemed as a house at any time (see, e.g., Supreme Court Decision 2004Du14960, Apr. 28, 2005). Meanwhile, it is difficult to view the pertinent officetel as the object of non-taxation of capital gains tax to have the burden of proof as to the transfer of one household’s house (see, e.g., Supreme Court Decision 2005Du843).

A) In each of the instant officetels, each of the instant officetels, with shower facilities, such as toilets, singkes, garments, laundrys, laundrys, and air conditioners, are installed in a basic form, and there seems to be no color for using them for residential purposes.

B) From April 9, 2016 to December 30, 2016, the KOOO, who leased the instant officetel, was present as a witness under this law and leased the instant officetel for the purpose of residing by the children working for the OO hospital located in front of the instant officetel, and actually resided in the said officetel. Although they were flicking flicking flick flick flick flick flick flick flick flick flick flick flick flick flick flick flick flick flick flick flick flick flick flick flick flick flick fl, the KOO used the said officetel for the purpose of residence.

C) From August 16, 2014 to August 23, 2016, OO, which leased the instant 2tel, was present in this court as a witness and leased the instant 2tel for the purpose of his residence, and actually resided in the said 2tel during the lease period. At the time of the lease agreement, OO testified that the owner of the instant 2tel was the owner of the instant 2tel (the Plaintiff’s wife appears to be referred to as the Plaintiff’s wife), and it was too good for the owner of the instant 2tel to live for a long time. The O testified testified that the moving-in report was made on the condition that it is too good for the employee of the company. The moving-in report was not made. The OO did not have registered its business during the lease period, and worked as an employee of the Ochemical

3. Conclusion

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