Cho-2016-China-1932 ( December 09, 2016)

The time of acquisition of the house through division of property at the time of divorce shall be when the spouse first acquires.

The time of acquisition of the house of this case transferred by the plaintiff in the name of division of property shall be when the spouse first acquired.

Article 155 (Special Cases concerning Housing of One Household) (1) and (2) of the Enforcement Decree of the Income Tax Act

2018Guhap12126 Disposition of revocation of refusal to correct capital gains tax

OO

O Head of tax office

April 17, 2018

May 8, 2018

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The defendant's rejection disposition against the plaintiff is revoked. The defendant's rejection disposition against the plaintiff is revoked.

1. Details of the disposition;

A. On May 23, 1968, the Plaintiff completed the marriage report with AA, and AA newly built a house on the OO-dong OOO-dong land owned by it (hereinafter “instant house”) at its own expense, and completed the registration of initial ownership on March 30, 1983 in the name of parent BB on August 31, 1990.

B. On September 29, 1997, the Plaintiff acquired OOOO apartment OOOO apartment OOO apartment (hereinafter “the apartment of this case”).

C. Meanwhile, BB died on October 24, 2005, and its heir had AA, DD, EE, FF, and GG.

D. Around July 7, 2010, the Plaintiff filed a divorce lawsuit against AA (OOCO in the Seoul District Court). On July 7, 2010, the conciliation was concluded that “A and the Plaintiff were divorced, and AA performed the registration procedure for transfer of ownership based on the division of property on the instant housing site, etc. on July 7, 2010, and the Plaintiff performed the registration procedure for transfer of ownership based on the division of property on the same day on the same day as the Plaintiff acquired the ownership of the instant housing.”

E. After that, the Plaintiff did not transfer the ownership of the instant house under the name of the deceased BB to the Plaintiff. The Plaintiff filed a lawsuit (OOOOOO of the district court) claiming ownership transfer registration of the instant house against the deceased BB’s heir by claiming ownership transfer registration (OOOOO of the instant house) on October 14, 2013. In the instant lawsuit, the conciliation was concluded on October 14, 2013, “AA, DD, FF, and GG were to perform the procedure for ownership transfer registration for each of the instant housing due to the title transfer registration for each of the instant housing units to the Plaintiff.” On November 6, 2013, “EE” became final and conclusive that “The Plaintiff is implementing the procedure for ownership transfer registration due to title transfer registration for 1/5 of the instant housing units to the Plaintiff on the grounds of title reinstatement” (hereinafter “reconciliation recommendation and settlement recommendation”) and the Plaintiff completed the registration of ownership transfer registration based on title transfer registration for one-fifth of the instant housing units.

F. Thereafter, on April 13, 2015, the Plaintiff entered into a sales contract with HH and III on the instant apartment, and completed the registration of ownership transfer as to each of the instant apartment units 1/2 shares in HH and III on June 15, 2015.

G. On August 15, 2015, the Plaintiff filed a preliminary return on the tax base of transfer income for the transfer of the instant apartment with the Defendant as the OOO and calculated OOOO for the tax base of transfer income for the year 2015, and filed a request for correction with the Defendant on the ground that “The transfer of the instant apartment is prior to the amendment by Presidential Decree No. 27829, Feb. 3, 2017; hereinafter “former Enforcement Decree of the Income Tax Act”) is a temporary 2 house owner under Article 155(1) of the former Enforcement Decree of the Income Tax Act, and the special provision on non-taxation for one household is applicable.”

H. The Defendant rejected the Plaintiff’s claim for correction on the ground that “The acquisition date of the instant house acquired by the Plaintiff by exercising the right to claim division of property shall be deemed the acquisition date of the instant house by the spouse, who was not the day the ownership transfer registration was completed under the Plaintiff’s name, and the instant apartment house for which the Plaintiff filed for non-taxation was transferred after the lapse of three years from the acquisition date, and thus does not constitute the requirements for non-taxation on one house for one household (hereinafter “instant disposition”).

Facts that there is no dispute with recognition, Gap evidence 1 through 10, Eul evidence 1 and 2 (including each number), the purport of the whole pleadings.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The transfer of apartment in this case constitutes a special case of one house for one household under Article 154 (1) through (2) of the former Enforcement Decree of the Income Tax Act as follows, and thus, the transfer of apartment in this case is subject to non-taxation of capital gains tax. The disposition of this case refusing a correction claim

1) On the other hand, the Plaintiff acquired the instant apartment on September 29, 1997, and owned two houses including the instant apartment that the Plaintiff’s spouse acquired by inheritance from BB on October 24, 2005, and the Plaintiff transferred the instant apartment that the Plaintiff acquired before the commencement of inheritance on June 15, 2015, pursuant to Article 155(2) of the former Enforcement Decree of the Income Tax Act, which provides for the special provisions on non-taxation for one house per household.

2) Preliminaryly, the Plaintiff acquired the instant apartment on September 29, 1997, and filed a separate lawsuit against the deceased BB’s inheritors, including AA, and received a decision to recommend the instant conciliation and settlement, and accordingly acquired the instant apartment after completing the registration of ownership transfer on December 11, 2013 (not acquired through the division of property due to divorce with AA), and accordingly, transferred the instant apartment on June 15, 2015, less than three years thereafter, as the Plaintiff acquired another house after the lapse of one year from the date of acquiring the previous apartment, and thereafter, Article 155(1) of the Enforcement Decree of the Income Tax Act applies because it constitutes “cases where the previous house is transferred within three years from the date of acquiring such other house” and Article 155(1) of the Enforcement Decree of the Income Tax Act applies.

B. Relevant statutes

Attached Form 1 is as shown in attached Table 1.

C. Determination

1) Relevant legal principles

The principle of strict interpretation derived from the principle of no taxation without law is applicable not only to the cases that meet the taxation requirements, but also to the cases that meet the requirements for non-taxation and tax reduction and exemption. As such, extensively interpreting or analogical interpretation of the requirements for non-taxation or tax exemption and exemption as favorable to taxpayers without any justifiable reason leads to a result contrary to the principle of fair taxation, which is the basic ideology of the tax law, and thus, it shall not be allowed (see Supreme Court Decision 2005Da19163, May 2

2) Determination on the instant case

A) Whether Article 155(2) of the former Enforcement Decree of the Income Tax Act is applied

First of all, we examine whether Article 155 (2) of the former Enforcement Decree of the Income Tax Act can be applied to the transfer of apartment of this case, as the plaintiff's main assertion is. The plaintiff's main assertion on this premise is without merit, in case where a household transfers a house acquired before the commencement of inheritance after succeeding another house while one house was owned by the household, pursuant to Article 155 (2) of the former Enforcement Decree of the Income Tax Act. As seen earlier, the house of this case was newly constructed at its own expense by AA, which was acquired at the original time by constructing the house, and was trusted to BB, which was owned by AA due to inheritance, and thus, the house of this case does not fall under the " inherited house" under Article 155 (2) of the former Enforcement Decree of the Income Tax Act.

(B) In the event that the Plaintiff succeeds to the instant apartment on July 7, 2010, the Plaintiff transferred the instant apartment on June 15, 2015, which was at the time of transfer, and on June 15, 2015, constitutes a household with AA and 1 households. As such, Article 155(2) of the former Enforcement Decree of the Income Tax Act, premised on the fact that the Plaintiff is a household at the time of the transfer of the said apartment, is not applicable.

B) Whether Article 155(1) of the former Enforcement Decree of the Income Tax Act is applied

Next, as the plaintiff's conjunctive assertion, it is examined whether Article 155 (1) of the former Enforcement Decree of the Income Tax Act can be applied to the transfer of apartment in this case, since the plaintiff acquired the housing in this case by completing the registration of transfer of ownership on December 11, 2013.

The property division system under Article 839-2 of the Civil Act is substantially applicable to the partition of co-owned property in light of its legal nature, object and scope, etc. Therefore, the legal principle as to the partition of co-owned property shall apply mutatis mutandis. The division of co-owned property is substantially limited to the specific part acquired through the division, namely, the right to share, which is substantially exercised according to the share ratio, and its ownership form is changed as it continues only to exist in the specific part. Thus, it cannot be deemed as the transfer of property at a cost. This legal principle also applies to cases where the property transferred to one of the married couple by the division of property is transferred to the other party by the division of property (see Supreme Court Decision 96Nu1401, Feb. 13, 1998). In addition, the time of acquisition, which serves as the basis for the calculation of transfer margin, is the time of initial acquisition rather than the transfer of property due to the first acquisition of property by the division of property, and its acquisition value should be determined at the time of transfer of property due to the first acquisition of property (see Supreme Court Decision 1329Du1482, Mar. 16, 19,29, etc.

As seen earlier, the instant housing was acquired by AA while married with the Plaintiff. Although AA had completed the registration of transfer of the instant housing with the division of property by divorce pursuant to divorce conciliation, AA did not transfer the instant housing to the Plaintiff. Accordingly, the Plaintiff completed the registration of transfer of the instant housing by obtaining a decision on the instant conciliation and recommendation for reconciliation against the heir of the deceased BB to exercise the right to claim a division of property regarding the instant housing, and as such, the Plaintiff cannot be deemed to have acquired the instant housing only based on a separate cause on December 11, 2013, as alleged by the Plaintiff, as alleged by the Plaintiff.

In addition, it is reasonable to view that AAA acquired the instant house on March 30, 1983 (see Article 98 of the former Income Tax Act, Article 162 (1) 4 of the former Enforcement Decree of the Income Tax Act), and the Plaintiff acquired the instant apartment on March 30, 1983 after acquiring the instant apartment on March 30, 1983 and acquiring the instant apartment again on June 15, 2015 to determine whether the special provisions of Article 155 (1) of the former Enforcement Decree of the Income Tax Act shall apply. Thus, it is reasonable to deem that AAA acquired the instant apartment on September 29, 197 and then transferred the instant apartment again on June 15, 2015, and the transfer of the instant apartment does not constitute the Plaintiff’s assertion on the premise that “The Plaintiff acquired another house after at least one year elapsed from the date on which the previous apartment house was acquired and transferred within three years from the date on which it was acquired.”

3. Conclusion

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