early 209 middle 1697 ( November 18, 2009)

Where a house falls under the multi-family high-class housing standards, it shall be excluded from reduction and exemption.

Multi-household housing is a detached house with an exclusive area exceeding 264m2 and the actual transfer value exceeds 60 million won, and thus, it is excluded from the object of reduction and exemption of newly-built house

1. Of the instant lawsuit, the part on the revocation of the disposition imposing capital gains tax on October 1, 2008 and the part on the claim for payment of money are dismissed.

2. The plaintiff's remaining claims are dismissed.

3 Costs of lawsuit shall be borne by the plaintiff.

Each disposition of imposition of capital gains tax of 14,605,618 won for the portion belonging to the year 2007, which the Defendant rendered to the Plaintiff on October 1, 2008, and of 39,462,700 won for the portion belonging to the year 2008 as of January 10, 209, shall be revoked. The Defendant shall pay 4,723,600 won to the Plaintiff.

1. Details of the disposition;

A. The plaintiff newly built a multi-family house located in the original AA, Dong-dong 374-3 (hereinafter referred to as "the first house in this case") and a multi-family house located in the same 374-5 (hereinafter referred to as "the second house in this case", and "each house in this case" in addition to the first house in this case was approved on October 5, 199.

B. After that, the Plaintiff transferred the instant housing No. 1 to KRW 487,00,00 on September 28, 2007 and KRW 1 to KRW 487,00,000 on November 20, 207 for the instant housing No. 1, and filed a tax base return on January 30, 2007 for the instant housing No. 2, with the acquisition value of KRW 195,709,80 on November 30, 2007 for the instant housing No. 2, with the acquisition value of KRW 216,064,70 on January 31, 208 for each transfer of the instant housing No. 2, and voluntarily paid capital gains tax of KRW 5,695,740 on the transfer of the instant housing (the instant housing No. 2).

C. On October 1, 2008, the Defendant applied conversion acquisition value of KRW 141,009,590 to the Plaintiff on the ground that the acquisition value of the instant LO house reported by the Plaintiff is unclear due to lack of evidence related to the stable housing, and imposed capital gains tax of KRW 14,605,618 on the Plaintiff for the year 2007.

D. In addition, on January 10, 2009, the Defendant: (a) applied the conversion acquisition value of KRW 154,875,998 on the ground that the acquisition value of the instant second house reported by the Plaintiff is unclear because there is no evidence related to the new construction of the said house; (b) held multi-household housing located in Seocheon-si Adong 374-2 and one parcel at the time of the transfer of the instant second house; and (c) deemed that such transfer constitutes a transfer of the housing of one household, and accordingly, issued the instant disposition to rectify KRW 39,462,70 for the transfer income tax reverted to the year 2008 - by applying the premium rate of 60%.

E. On March 24, 2009, the Plaintiff filed an appeal seeking the revocation of the instant disposition with the Tax Tribunal, but was dismissed on November 18, 2009.

[Ground of recognition] Facts without dispute, Gap evidence 1 to 3, 5, 6 evidence 1 to 1 to 4 (including a natural disaster) and the purport of the whole pleadings

2. Related statutes;

It is as shown in the attached Form.

3. On October 1, 2008, the part on the claim for revocation of the disposition imposing capital gains tax on October 1, 2008 and whether the part on the claim for payment is legitimate

A. On October 1, 2008, as to the legitimacy of the part concerning the claim for revocation of the disposition of capital gains tax as of October 1, 2008 among the instant lawsuit, pursuant to Articles 5(1) and 56(2) and (4) of the Framework Act on National Taxes (amended by Act No. 9911, Jan. 1, 2010), administrative litigation on the disposition under tax-related Acts ought to undergo a request for examination or adjudgment under the Framework Act on National Taxes, or a decision thereon, or a request for examination under the Board of Audit and Inspection Act, and a decision thereon. However, as seen earlier, the Plaintiff only followed the procedure of the previous trial on the instant disposition, and there is no evidence to acknowledge that the Plaintiff had undergone the previous trial even with regard to the disposition of capital gains tax as of October 1, 2008. Therefore, the said part of the claim is unlawful.

B. Furthermore, if the Plaintiff wishes to receive the transfer income tax claiming that erroneous payment was made by examining the legitimacy of the portion of the claim for payment of the instant monetary amount ex officio, the Plaintiff is seeking a refund against the Defendant, even though it is required to file a lawsuit against the Republic of Korea, which is the subject to which the said claim belongs. Therefore, the Plaintiff is unlawful as it files a lawsuit against

4. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) relating to the application of heavy rates

A multi-family house shall be determined at the taxpayer’s option. However, the Plaintiff filed a tax base return on the transfer income tax of the second house of this case on the basis of general tax rate, not the heavy tax rate, which is applied in cases where the Plaintiff transfers a house corresponding to three or more houses for one household under the premise that each house of this case is not a detached house, but a small house with a total floor area of not more than 60 square meters for each house of this case. Therefore, the instant disposition that served as a heavy taxation rate under the premise that the transfer of the second house of this case constitutes three houses for one household (hereinafter referred to as the “principal”)

(2) Regarding reduction and exemption of capital gains tax

The second house of this case constitutes a house subject to reduction or exemption of capital gains tax under Article 99 of the Restriction of Special Taxation Act (amended by Act No. 6762 of Dec. 11, 2002), and thus, the disposition of this case is unlawful (hereinafter referred to as "claim 2"). The plaintiff alleged that the first house of this case also constitutes a house subject to reduction or exemption of capital gains tax under the above provision, but as seen earlier, the part of the claim for revocation of disposition of capital gains tax of this case is unlawful through the procedure of the previous trial, and thus, the relevant disposition's allegation

B. Determination

(1) Judgment on the assertion No. 1

(A) Comprehensively taking into account the contents of Article 104(1)2-3 of the Income Tax Act, Articles 155(15) and 167-3(2)1 of the Enforcement Decree of the said Act (amended by Presidential Decree No. 20720, Feb. 29, 2008); Articles 1 and 3 of the Enforcement Decree of the said Act (Presidential Decree No. 19890, Feb. 28, 2007); Articles 74 and 82(1) and (3) of the Enforcement Rule of the said Act (amended by Ordinance of the Ministry of Strategy and Finance No. 15, Apr. 29, 2008); in determining the scope of houses falling under three or more houses for one household to which heavy taxation 60% applies; in cases where a multi-family house is purchased at least one unit of household and the house is transferred within 00 or less square meters as one independent house at the time of acquisition or transfer of the house to 30 or less houses, respectively, one of which is divided within one owner.

(B) On the premise of these provisions, according to the evidence Nos. 1-2, 2-2, 5-2, 2-7, and 1-2 of the evidence Nos. 1-2, the Plaintiff transferred each of the instant houses, which were multi-family houses, from the time of approval for use to the time of transfer of the certificate No. 1-2, and the Plaintiff may acknowledge the fact that the Plaintiff filed a tax base return on the transfer income tax of the instant second house on the basis of a general tax rate, not a middle taxation, in cases where the Plaintiff transfers the instant house, not a single house, but a small house with the total floor area of not more than 60 square meters of each of the instant houses.

(C) However, according to the statement in Gap evidence Nos. 4-1 and 2, the apartment house No. 2 in this case is 116.52 square meters in total, and the remainder of the apartment house No. 2 in this case is 60 square meters or less in total. Meanwhile, the apartment house No. 374-1 and one parcel, which the plaintiff held at the time of the transfer of each of the houses in this case, is 93.6 square meters in each house, and the apartment house No. 2 in this case is 93.66 square meters in total, and the standard market price at the time of transfer exceeds 40 million won in each house No. 2 in this case.

(D) Ultimately, the argument ① is without merit.

(2) Judgment on the assertion 2

Articles 1, 29(1) and 99(1)1 of the Addenda of the Restriction of Special Taxation Act (amended by Act No. 6762, Dec. 11, 2002); Article 89(1)3 of the Income Tax Act (amended by Act No. 6781, Dec. 18, 2002); Article 156 subparag. 2 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 17825, Dec. 11, 2002); Article 156 subparag. 2 of the same Act (amended by Presidential Decree No. 17825, May 22, 1998; hereinafter referred to as “the date of acquisition”) shall be the period from the date of acquisition to the date of June 30, 1998 (in cases of national housing, from the date of acquisition to the date of acquisition of the relevant house subject to the exclusive use by the owner of the house after the lapse of 15 years from the date of acquisition;

According to the statement of No. 5-1 of the Ministry of Health and Welfare on the premise of these provisions, the said house constitutes a high-class house with the total floor area of 517.5 square meters, which is not subject to reduction or exemption of capital gains tax. Therefore, the Plaintiff’s assertion premised on the acquisition of the said house during the acquisition period subject to reduction or exemption of capital gains tax is without merit.

5. Conclusion

Of the instant lawsuits, the part on the revocation of the disposition imposing capital gains tax on October 1, 2008 and the part on the claim for payment of money are dismissed, and the remaining claims of the Plaintiff are dismissed.