Gwangju District Court-2018-Guhap-43 (2018.30)

Cho-2017-B-2191 ( October 19, 2017)

One household's non-taxation special case is not applicable to the transfer of general housing because it fails to meet the requirements of return to farming.

The owner of farmland and the owner of a house of return to rural communities may be deemed to meet the requirements of the house of return to rural communities to be identical, and in this case, since it cannot be deemed that all members of the household have transferred the general house after return to rural communities, the special case of non-taxation for one house for transfer

Article 89 of the Income Tax Act: 155 of the Enforcement Decree of the Income Tax Act:

Gwangju High Court-2018-Nu-5764 ( October 31, 2019)

After the transfer of apartment, the first transfer after the return to farming under Article 155 (11) of the Enforcement Decree of the Income Tax Act.

It argues that the special exception of non-taxation is not applicable because it does not fall under the general housing.

2) Article 155(11) of the Enforcement Decree of the Income Tax Act provides that all members of a household shall return to rural communities due to return to rural communities.

In the case of directors, the special provisions on non-taxation for one household shall apply only to only one general house transferred for the first time after return to the farm, and the "the date of return to the farm" is defined as "the date of commencement of residence after moving resident registration to the house of return to the farm."

3) The purport of the provision of Article 155(11) of the Enforcement Decree of the Income Tax Act is to make one return to farming and general house, respectively.

A household owned by it is subject to non-taxation pursuant to paragraph (7) of the same Article while transferring the general housing.

If another person acquires and transfers another general house again, such act shall also be repeated.

Since continuing to apply paragraph 7 above to non-taxation is contrary to the purport of the above provision, it is so doing.

one of the houses transferred after return to farming shall not be subject to paragraph (7).

It appears that only the housing will benefit from non-taxation, and considering this, Article 155 above.

One general house to be transferred for the first time after return to farming under paragraph (1) shall be subject to non-taxation after return to farming.

Except for the transfer of general housing in a state that is not satisfied, one general house and one return to rural communities.

One general house under the condition that the said non-taxation requirements under paragraph (7) are met by having a house;

Cases of first transfer (see Supreme Court Decision 2004Du10869, Dec. 23, 2005).

4) Considering the above provisions and legislative intent, the instant case is subject to Article 155(11) of the Enforcement Decree.

Whether it is subject to tax exemption under paragraphs (7) 3 and (10) of the same Article at the time of the instant apartment disposal

Article 155 (10) 5 of the Enforcement Decree of the Income Tax Act provides that a person shall meet the requirements.

‘All members of the household shall live and reside in the country', and ‘after returning to the country' according to paragraph 11 above.

“A director of a household as a house of return to rural communities due to the return to rural communities” can be seen as after the return to rural communities, and the above 12

According to paragraph (1), the owner of the house of return to the farm is engaged in farming for at least three consecutive years from the date of return to the farm

In the case of one house for one household to be the owner, the date of returning to the farm shall be the date of returning to the house of return to the farm and residing after moving the resident

The date of commencement is stipulated as ‘the date of commencement of taxation without law'.

or the requirements for tax reduction or exemption, and the interpretation of tax laws and regulations shall be governed by the law, unless there are special circumstances.

It is not permitted to expand or analogically interpret without reasonable grounds.

F. F. (See Supreme Court Decision 2002Du9537, Jan. 24, 2003). “All members of a household shall live in Korea by being a director.”

in determining whether or not a non-taxable requirement is satisfied, all members of the household shall state in the house of return to the farm.

It should be viewed that it is required to move to reside in the private registration.

In full view of the entries of No. 5 and the purport of the whole pleadings, the Plaintiff’s spouse, Kim ○○ shall be 2013.

1. The resident registration of the instant house to return to rural communities was transferred on April 25, 2016, and the Plaintiff returned to rural communities on April 25, 2016.

It can be recognized that the time of the disposal of the apartment in this case is the time of the transfer of resident registration.

The facts of February 29, 2016 are as recognized earlier, and thus, the time of returning to the farm is the time of returning to the farm.

On April 25, 2016, the apartment of this case, which had been registered as a resident in the home, is after the transfer of the apartment of this case.

Article 155 (11) of the Enforcement Decree of the Income Tax Act because the plaintiff could not have returned to farming at the time of apartment disposal.

subsection (1).

5) The requirement that all members of the household shall be members of the household regardless of whether they are resident registration.

Even if the date of return to the farm must be determined based on the actual date of return to the farm, the above evidence Gap 5, 11

17 through 20, 22, 24, 28 through 31, and 5 respectively, and the purport of the whole pleadings and arguments.

In light of the following facts and circumstances that can be recognized together, the Plaintiff’s instant case

It is easy to recognize the fact that a person actually resided in a house of return to rural communities before the resident registration is transferred.

It is difficult to do so.

① The date of approval for use of the instant house to return to rural communities is July 17, 2013; and the date of registration for preservation of ownership shall be July 17, 2013.

7. 25. On the other hand, the Plaintiff is the resident registration date of the instant return house of his spouse Kim ○○, his spouse Kim Jong-○.

18. The assertion that he/she resides in the house of return to rural communities of this case from the date of approval for use, which is more than six months.

It is difficult to view that it was a situation that can actually reside at the front time.

② The content of the letter of personal guarantee (Evidence No. 18) also is as mentioned above, the above letter of personal guarantee from January 18, 2013 to the above Kim○-○.

Since he resided in the house of return to the rural community of this case, he believed it as it is for the above reasons.

It is difficult to do so.

③ The fact that the Plaintiff and one other were actually occupied on February 25, 2013 in the instant apartment is accompanied by a written confirmation of occupancy.

As confirmed, there is considerable room to regard the above one as the above Kim ○○. In this respect, the above Kim

It is difficult to easily believe that the Plaintiff’s assertion on the residential day of the instant return to rural communities is difficult.

④ The Plaintiff asserted that he leased the apartment of this case to his husband and wife, but the Dolle Park.

On September 3, 2015, a move-in report is completed on the apartment of this case, and on March 27, 2013.

The Plaintiff’s deposit of KRW 200,000 per month to the Plaintiff from March 3, 2016 with the sole fact that the Plaintiff deposited KRW 200,00 per month.

It is difficult to readily conclude that the apartment of this case was leased to the Plaintiff.

⑤ On February 29, 2016, the date of the transfer of the apartment of the instant case, the Plaintiff and his/her husband and wife shall be a resident on February 29, 2016, KRW 00,00 apartment units 10* Dong 80* (hereinafter referred to as the “house of the instant case”).

The Plaintiff filed a move-in report for registration. In this regard, the instant turn-out house was set up by △△△△.

The parties to the lease contract of the leased house of this case are the parties to the lease contract of the leased house of this case but appears to be the party.

The payment of the premium of KRW 290 million is the plaintiff, and the Dok-gu shall be from March 3, 2016 to February 9, 2018.

The plaintiff's deposit to the plaintiff almost KRW 200,000 per month is made to the △△.

It is difficult to view that the loan was made, and △△△ Housing lease term (from February 17, 2016 to February 17, 2018)

Residents who are in progress on October 13, 2016 from the Jeonse Housing of this case to 00 apartment units located at 00,000 dong, 00 dong, 00.

In light of the fact that the registration was transferred, the plaintiff actually returned to the farm of this case as alleged by the plaintiff.

A resident in the housing but without the consent of the plaintiff,

It is difficult to see that a moving-in report was made with a lease house.

(6) From April 2015 to March 2016, the electric utility rate for the house of return to rural communities in this case is remarkably low.

In light of the increase in the electricity rates of the instant house of return to the rural community from April 2016, the Plaintiff

A. On February 22, 2016, deeming that the instant apartment was completely directored from the instant apartment to the instant house of return to the rural community.

It is difficult for the Plaintiff to do so. Accordingly, on February 22, 2016, the remaining cognizs in the instant apartment.

It is alleged that the rural house was entirely moved to the rural house, but the air conditioners, etc. were moved to and installed.

(A) A list of transactions related to the installation of air conditioners (Evidence A 28) to be submitted shall be a simple receipt.

It is difficult to believe that it is, and even if based on it, to move out the air conditioners of the apartment of this case.

Only the fact that the location is insufficient to recognize as a house of return to the rural community in this case, and that the certificate of inspection of electric consumption is written.

to the extent that it is difficult to confirm the reason for excessive inspection and the period of time imposed only on the basic fee, etc.

In light of the Plaintiff’s assertion that around February 22, 2016, a full director of the instant return house was made to return to the rural community is easy.

It is difficult to recognize it.

(7) The amount of water used for February 2013 is zero and the amount of water used for February 2, 2013 is the amount of water used for February 3, 2013 and the amount of water used for May 2, 2013.

5. In light of the fact that the payment was made on January 18, 2013, the above Kim ○○ actually resided in the instant house to return to the rural communities around January 18, 2013.

It is difficult to deem that the volume of water used between December 2015 and June 2016 is normal.

the use from January to March 2016 to March 3, 2016;

In light of the fact that the amount of water used for April is significantly low, the Plaintiff returned on February 22, 2016.

It is difficult to see that the director was in the deaf house.

6) In this respect, the Defendant’s instant disposition is legitimate, and thus, the Plaintiff’s assertion is accepted.

shall not be required.

D. Sub-determination

Therefore, the plaintiff acquired a house of return to farming as a farmer and transferred the apartment of this case.

B. It is difficult to view that the instant apartment was actually a director in the instant house of return to the rural community at the time of transferring the apartment, and thus, the provisions on non-taxation cannot be applied because it does not meet Article 155(7), 10, and 11

5. Conclusion

If so, the plaintiff's claim shall be dismissed as it is without merit, and the judgment of the court of first instance shall be dismissed.

As the conclusion is justified, the plaintiff's appeal is dismissed. It is so decided as per Disposition.

1) Supreme Court Decision 2013Du4057 Decided January 23, 2013, which became final and conclusive on May 23, 2013.

Category 00

00. Head of tax office

December 06, 2018

201.01.31

1. The plaintiff's appeal is dismissed.

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

The decision of the first instance court of the Gu Office shall be revoked. The defendant's rejection of a request for correction of KRW 22,849,159 against the plaintiff on September 27, 2016 shall be revoked.

1. Details of the disposition;

The court's explanation on this part is the same as '1. The reasons for the decision of the court of first instance'. Thus, it is accepted by Article 8 (2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act.

A. The Plaintiff and the Plaintiff’s spouse, Kim ○○ constitutes a special case of non-taxation on the transfer of one house for one household by transferring the instant apartment house after having moved in the house of return to the same household under Article 155(7)3 of the Enforcement Decree of the Income Tax Act. In light of the purport of the special case of non-taxation on the transfer of one house for one household with respect to the house of return to the same household, not only where the owner of farmland and the house of return to the same household belong to the same household but also where the owner belongs to the same household, it shall be deemed that the requirements

B. The Plaintiff and the Plaintiff’s spouse, Kim ○○ was a director of the instant apartment before transferring the instant apartment, and thus, the instant apartment falls under the general housing that was first transferred after returning to rural communities, as prescribed in Article 155(11) of the Enforcement Decree of the Income Tax Act, and thus, the exemption from the tax on the transfer of one house for

C. Although the Defendant merely constitutes a disposition under Article 155(10)4 of the Enforcement Decree of the Income Tax Act, it additionally claims Article 155(11) of the Enforcement Decree of the Income Tax Act when the lawsuit was brought, since the identity of basic facts is not recognized, the grounds for disposition cannot be added.

It is as shown in the attached Form.

4. Determination

A. As to the addition of the disposition reason

1) The tax authority upon receipt of a request for reduction or correction is obligated to investigate and verify whether the tax base and tax amount recorded in the tax base return exceed objectively legitimate tax base and tax amount to be reported under the tax-related Acts. Thus, even in a lawsuit seeking revocation of a disposition of refusal against a request for reduction or correction, the tax base and tax amount recorded in the tax base return are objective existence (see, e.g., Supreme Court Decision 2010Du13425, Jun. 28, 2012). Therefore, the tax authority may exchange and change the reasons within the scope of submission of new materials to support the legitimacy of the tax base and tax amount recognized in the relevant disposition by the time of closing argument at the trial court during the lawsuit, or claim only the grounds for the disposition at the time of the disposition (see, e.g., Supreme Court Decision 2001Du1994, Oct. 11, 202).

[Reference]

2) In full view of the entries in Gap evidence Nos. 1 through 3 and the purport of the whole pleadings, the defendant's grounds for disposition

'In the case of the claimant, the owner of the farmland and the house are different respectively, and the requirement of special exemption from one house for one household is satisfied.

The disposition in this case is written as not sufficient (Article 155 (10) 4 of the Enforcement Decree of the Income Tax Act).

The facts that the Tax Tribunal notified the Plaintiff, and on the ground of Article 155(11) of the Enforcement Decree of the Income Tax Act

fact that the court dismissed the appeal, and the Enforcement Decree of the Income Tax Act through a written answer submitted by the defendant to the first trial.

Article 155 (11) may be recognized as constituting a legitimate ground for the instant disposition.

In light of these facts, the Defendant’s fundamental history on the instant house of return to rural communities and apartment houses

income tax which is a reason to support the legitimacy of the tax base and amount of tax without maintaining a real relationship.

Article 155 (11) of the Enforcement Decree of the Act is merely a addition to and submission of related data, and such disposition is merely a disposition.

Article 155 of the Enforcement Decree of the Income Tax Act can be seen as being within the scope of maintaining daily life.

It is legitimate to add Paragraph 11 to the grounds for the disposition.

3) Therefore, the Plaintiff’s assertion on this part is without merit.

B. As to the same owner of farmland and farming house

1) The principle of strict interpretation derived from the principle of no taxation without law is applicable to taxation requirements.

applicable not only to the requirements for non-taxation and tax exemption, but also to the tax payment

extended interpretation of the requirements for non-taxation or tax reduction or exemption as favorable to a person without reasonable grounds.

It causes a result contrary to the principle of tax equity, which is the basic ideology of the tax law.

As such, it is not permissible (see, e.g., Supreme Court Decisions 90Nu9797, Jul. 9, 1991; 2005Da19163, May 25, 2006).

2) Article 89(1)3 (b) of the Income Tax Act does not impose income tax on capital gains.

in the case of "one household" shall acquire another house in lieu of, or succeed to, or live together before transferring one house.

"Housing prescribed by Presidential Decree, which has two or more houses due to marriage, etc."

Accordingly, Article 155 of the Enforcement Decree of the Income Tax Act provides that the transfer tax of one house for one household shall be levied.

Sub-paragraph (7)(3) of this section provides for the purpose of farming or fishing.

The house acquired by return to farming and located in the Eup or Myeon area outside the Seoul Metropolitan area (referred to as such);

(n) One house for return to farming (hereinafter referred to as "house for return to farming") and one other house (hereinafter referred to as "ordinary house") in Korea, respectively.

In case where one household which owns one house transfers the ordinary house, it shall own one house in Korea.

The Enforcement Decree of the Income Tax Act provides that no capital gains tax shall be imposed on the person who is deemed to have been

Section 155(10)(3) of the above section shall be entitled to engage in farming or fishing.

"Person" means a person acquiring and residing in the Republic of Korea and meeting the following requirements:

In other words, "a person who owns farmland of not less than 1,00§³" as a requirement under subparagraph 4 (a) of the same paragraph shall acquire the house located in the location of the farmland.

3) In light of the legal principles as seen earlier, the health class, ① Article 89(1) of the Income Tax Act

In the case of the house of return to the farm under the provisions of subparagraph 3 (b), one household with an exception recognized even though it is two houses for one household.

Recognizing special cases of non-taxation for one house, the granting of special cases of taxation when acquiring a house of return to rural communities.

In order to encourage return to farming, and the house is the basis of the residential life of the people, one household is a country.

(1) The transfer of one house owned within the territory shall be made for the purpose of obtaining capital gains or speculation.

given that it may not be deemed that it was not transferred while temporarily residing or owned;

by failing to impose the income tax on the capital gains, and thereby residential life of the people

The purpose of guaranteeing stability and the freedom of residence is to guarantee the freedom of residence, and ② as above, the Income Tax Act

Article 89(1) of the Act on Special Cases concerning Non-taxation on Income Tax of Two Houses for One Household related to House of Return to Rural Community

and specifically authorized to be prescribed by the Presidential Decree, and therefore, the time of such

Article 155 (10) of the Enforcement Decree of the Income Tax Act shall not be levied on two houses for one household under delegation by the said Act.

It should be viewed that the special requirement is specified specifically, and ③ the principle of no taxation without law.

According to the principle of strict interpretation, farmland with a size of at least 1,00 square meters as the requirement of "house of return to rural communities"

a person who owns a house in the location of the location of the

(1) The scope of "house of return to rural communities" is limited to the house acquired by a person who owns farmland.

In addition, the spouse who is a member of the household such as a person who owns the farmland shall be deemed to have been acquired.

It is permissible to interpret that housing is also included in non-taxation requirements as extended and interpreted.

(4) Article 2 subparag. 2 and 5 of the Farmland Act and Article 3 subparag. 1 of the Enforcement Decree of the Farmland Act

In the Farmland Act, the concept of "farmer" is not less than 1,00 square meters and is engaged in the agriculture.

The cultivation or cultivation of crops or perennial plants in the land or the agriculture for at least 90 days a year;

At least 1/2 of the minimum work for agriculture by a farmer;

It is defined as "the cultivation or cultivation with labor force" and the Restriction of Special Taxation Act.

Article 69 'self-defensive value' even in the application of the reduction or exemption of capital gains tax for self-defensive farmland for not less than eight years.

meaning of "one half or more of its own labour" input into the cultivation of the farmland in question, and the cultivation thereof;

(1) At least 1/2 of the farming works conducted in the farmland in question;

In cases where the denial of land owned by the husband who is a member of the same household has been cultivated by the interpretation as "those conducted by the husband";

It is considered that it does not correspond to "requirements for self-sufficiency reduction" in 8 years (Seoul High Court 2013.

1. 11. See Supreme Court Decision 2012Nu1467771) The Income Tax Act and the Income Tax Act also provide for farmers on the basis of the Farmland Act.

Since the meaning of the House of Return to Rural Community is interpreted on the basis of ‘individuals of the parties who are not ‘households', it is interpreted as ‘individuals'.

Even if a member of the household other than a farmland owner acquires it, capital gains tax

in light of the consistency in deeming that the case does not meet the requirements of tax exception

In the case of two houses for one household, their agriculture to meet the special exception requirements of capital gains tax exemption;

It is reasonable to view that the owner of the land and the owner of the house of return to rural communities should be the same.

In this case, the owner of the farm house is not the plaintiff who is farmland owner but the spouse Kim ○○.

It should be deemed that the special exception requirement of non-taxation on two houses for one household cannot be applied.

section 3.

4) Therefore, this part of the Plaintiff’s assertion is without merit.

C. As to the time of return to farming

1) Furthermore, the defendant had the time when the plaintiff made a move-in report to the house of return to rural communities in this case.