It shall be deemed that a separate house is owned only when the house has the authority to use, profit, and dispose of the house which can be the basis of the residential life.

In fact, only some equity shares are held for the purpose of securing collateral or bonds for the purpose of voluntary sale, and it cannot be deemed that a person has the authority to use, profit from, and dispose of separate houses because he/she owns separate houses on the sole ground that he/she is a nominal equity right holder. Thus, it cannot be deemed that a person does not meet the requirements for non-taxation on one house for one household.

Article 154 of the Enforcement Decree of Income Tax Act

2013Gudan10086 Revocation of Disposition of Imposing capital gains tax

IsaA

Head of Geumcheon Tax Office

September 4, 2013

October 2, 2013

1. The Defendant’s imposition disposition of the capital gains tax for the year 201, which the Plaintiff rendered on September 5, 2012, is revoked.

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

Cheong-gu Office

The same shall apply to the order.

1. Details of the disposition;

A. On July 29, 201, the Plaintiff transferred an OO-dong 35BB apartment 306, 901 (hereinafter “instant apartment”) to the Defendant on November 29, 201, and filed a tax base of capital gains tax with one household non-taxation on one house.

B. On September 5, 2012, the Defendant determined that the Plaintiff owned two houses as follows other than the instant apartment, and determined that the Plaintiff was three houses for one household, not subject to non-taxation, and rendered a decision and notification on the Plaintiff on September 5, 2012 regarding the amount of capital gains tax to be reverted to the Plaintiff for the year 2011 (hereinafter “instant disposition”).

Classification

Location

Shares in Possession

The First House of this case

OO-si O-dong 269-1 single-story housing 25 square meters

1/5

The second house in this case

OO-si O-dong 273-4 2 multi-household detached houses, 107.61m2 and 77.11m2 stories;

1/20

C. Accordingly, the Plaintiff filed an appeal with the National Tax Tribunal, but was dismissed on May 13, 2013.

Facts without any dispute, Gap's 3 through 6 certificates, Eul's 1 and 3 certificates (including numbers in each letter; hereinafter the same shall apply), the purport of the whole pleadings.

2. The assertion and judgment

A. Summary of the plaintiff's assertion

Although the Plaintiff’s share in the first and second houses owned at the time of the transfer of the apartment house in this case is not owned for the purpose of housing, but for the purpose of securing the claim against thisCC, it is extremely limited to ownership and thus it is impossible to use the apartment as a house. Thus, it is unlawful to have determined that the instant disposition erred by misapprehending the requirements for non-taxation on one house for

(b) Fact of recognition;

(1) The Plaintiff, the Plaintiff, and ED and ECC, the form of which owned a co-ownership share of 115-26 m26 m2 and 115-45 m21 m20 m20 O-dong O-dong O-dong, and 115-45 m21 m20 m20 m20,000 (the Plaintiff’s share is 1/4). Accordingly, on September 14, 2006, the Plaintiff established a joint collateral security (joint collateral security) for the maximum amount of OE m20 m2, which was operated by thisCC, borrowed OOOOOO and used it as the fund for FF Real Estate Development (hereinafter “company”). However, all of the shares in each of the above forests and fields owned by the Plaintiff, ED, and ECC were sold through voluntary auction on August 17, 2009, and the Plaintiff lost each of the above co-ownership shares.

(2) After the Plaintiff lost the above co-ownership shares, the Plaintiff was paid the OO members under this claim against ED and ECC, but only the OO members were paid the same. The Plaintiff was transferred a part of co-ownership share of ED and EO real estate owned by EOD (hereinafter referred to as “instant co-ownership share”) as follows, inasmuch as management of the company becomes more difficult.

Real estate

Owners

Date of transfer registration of ownership;

Transferred shares

Amount of transactions entered in the register (won)

The First House of this case

Company

December 14, 2010

1/5

OOO

The second house in this case

D. D

December 14, 2010

1/20

OOO

OO-si OO-dong O-dong 538-2 389.5 square meters

Company

December 14, 2010

10/389.5

OOO

OO-si O-dong 269-6 Large scale 27 square meters

Company

December 13, 2010

15/27

OOO

OO-si OO-dong 53-3 Forest land of 1348 square meters

Company

December 13, 2010

27/3700

OOO

(3) When the Plaintiff is entitled to transfer his/her co-ownership right to the instant housing, the said housing had already been established with a maximum debt amount exceeding the maximum debt amount. When the Plaintiff is entitled to transfer his/her co-ownership right to the instant housing No. 2, the said housing had already been established with a maximum debt amount exceeding the maximum debt amount. However, the seizure and the commencement of voluntary auction for the entire real estate, including the instant housing No. 1 and No. 2, had been sold to a third party after August 201.

Real estate

Attachment and Voluntary Auction Commencement Date

The First House of this case

February 14, 2011 (Voluntary Auction)

The second house in this case

February 18, 201 (Attachment)

OO-si OO-dong O-dong 538-2 389.5 square meters

February 22, 2011 (Voluntary Auction)

OO-si O-dong 269-6 Large scale 27 square meters

February 14, 2011 (Voluntary Auction)

OO-si OO-dong 53-3 Forest land of 1348 square meters

February 15, 2011 (Voluntary Auction)

(4) Meanwhile, on August 1, 2011, the Plaintiff cancelled the instant co-ownership shares that were transferred to the Plaintiff on the grounds of the cancellation of the agreement.

Each description of evidence Nos. 1 and 2 of the Grounds for Recognition, testimony of the witness SogG, the purport of the whole pleadings

C. Determination

(1) The purport of not imposing income tax on the income accruing from the transfer of one house by one household under Article 89(1)3 of the Income Tax Act is to ensure the stability of a citizen’s residential life and the freedom of movement of residence by failing to impose income tax on the capital gains in certain cases where it can be deemed that the transfer of one house owned by one household in Korea is not a transfer of a house temporarily residing or owned for the purpose of speculation, since the house becomes the basis for citizen’s residential life (see, e.g., Supreme Court Decision 200Du10465, Sept. 28, 2001).

(2) Meanwhile, in calculating the number of houses owned at this time, Article 154-2 of the Enforcement Decree of the Income Tax Act provides that each co-owner shall be deemed to own the houses ( regardless of his co-ownership shares). However, in light of the purport of non-taxation on one house for one household, in order for a taxpayer to hold a separate house that prevents himself from meeting the requirements for non-taxation on one house for one household, it should be deemed that he owns a separate house that can be the basis of an economic and substantial residential life. Therefore, only one co-owner of the shares can be deemed to own a separate house if he owns the right to use, profit-making, and dispose of the house corresponding to his share, only if he owns a separate house under Article 154-2 of the Enforcement Decree of the Income Tax Act only if he actually owns a separate house for the purpose of securing collateral or bonds, and in fact, he cannot be deemed to possess a separate house under the name of the right to use, profit-making, and disposal of the house, and it cannot be deemed that it does not fall under the requirement of non-taxation on one house.

(3) Based on this point, the following circumstances are acknowledged as follows: ① in acquiring the instant co-ownership shares, the Plaintiff’s ground for acquisition is the sale and purchase of the instant shares, and the acquisition value was also recorded on the registry; however, the Plaintiff’s de facto payment of the purchase price was not made (as to the instant co-ownership shares, the Plaintiff cancelled all the share transfer registration on August 1, 201 due to the cancellation of agreement, and the refund of the purchase price did not appear to have been made). ② The Plaintiff’s share of the first and second houses in the instant case could not be used as a basis for residential life even if they actually acquired the instant shares in light of the structure or area of each house as a very partial share of the instant house, and ③ In addition, at the time of the Plaintiff’s acquisition of the instant co-ownership shares of the first and second houses, the apartment house was established with more than OO members in the instant case’s first and second houses, and thus, it cannot be seen that the Plaintiff’s ownership and sale of each of the instant houses constitutes a non-taxable share of the Plaintiff’s co-owned share.

(4) Ultimately, the instant disposition is unlawful and thus should be revoked.

3. Conclusion

If so, the plaintiff's claim of this case is reasonable, and it is decided as per Disposition.