Seoul Administrative Court 2012Gudan18793, 013

Even if the ratio of housing units for combined use is low, there is a portion of housing that can be used for the residence, and it constitutes a separate one house.

In applying the non-taxation requirement for one house for one household, even if the ratio of a combined house combined with a house and a part other than the house is lower, so long as there are parts of a house that can be actually used for the residence, it cannot be deemed as constituting the non-taxation requirement for capital gains tax. Therefore, the two houses owned by the spouse are deemed as a separate one house, and the disposition

Article 89 of the Income Tax Act

2013Nu13152 Revocation of disposition of imposing capital gains tax

Gangwon A

Head of Sungbuk Tax Office

Seoul Administrative Court Decision 2012Gudan18793 decided April 10, 2013

September 25, 2013

October 16, 2013

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance shall be revoked. The defendant's rejection of an application for rectification of capital gains tax against the plaintiff on September 26, 2011 shall be revoked.

The reasoning of the judgment of this court is as follows, except for the addition of the judgment of the plaintiff to the new argument that the plaintiff newly raised at the trial of the court of the first instance, and therefore, it is consistent with Article 8(2) of the Administrative Litigation Act and the main sentence of Article 4

In applying Article 89(1)3 of the Enforcement Decree, which provides that capital gains tax shall be reduced or exempted for one house for one household in the first instance, and where a single building is combined with a house and a part other than a house, the entire house shall be deemed a house, and where the total floor area of the house is smaller than or equal to the total floor area of the part other than a house, the part other than a house shall not be deemed a house. This is interpreted to the purport that capital gains tax shall be reduced or exempted for the portion other than a house, and in the case of a house at issue, as long as the total floor area of the house other than a house exceeds the total floor area of the house, as so long as the transfer income tax on the transfer of the house at issue exceeds the total floor area of the house, Article 89(1)3 of the Enforcement Decree provides that capital gains tax on the transfer of the house at issue shall be reduced or exempted, and as such, Article 89 of the Act provides that the part other than the house at issue and the building other than the house at issue are not subject to the transfer of the house at issue.

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