Tax Tribunal 2013.0570 (2013.04.02)

The claimant is not subject to non-taxation for one house for one household because he/she does not reside in the key constructed rental house for at least five years.

It is difficult to see that the applicant satisfies the requirements for non-taxation for one household when comprehensively considering the fact that the period in which he/she resided in the key constructed rental house is less than five years.

Article 89 of the Income Tax Act

2013Gudan3075 Revocation of Disposition of Imposing capital gains tax

KimA

The director of the North Incheon National Tax Office

October 22, 2013

November 19, 2013

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The Defendant’s imposition of the capital gains tax of November 1, 2012 against the Plaintiff on November 1, 2011 is revoked.

1. Details of the disposition;

A. On September 20, 2005, the Plaintiff leased and resided in OO-Gu OO-dong 440-1 BB apartment 116 Dong 1602 (hereinafter “instant apartment”) from the Korea Land and Housing Corporation. On September 20, 2010, the Plaintiff entered into a housing sale contract with the Korea Land and Housing Corporation and completed the registration of ownership transfer on September 30, 2010.

B. On May 12, 201, the Plaintiff transferred the above apartment and completed the registration of transfer of ownership to the HighCC, but did not report the transfer income tax on the ground that the transfer of the instant apartment constitutes one house for one household subject to non-taxation of transfer income tax.

C. Accordingly, on November 1, 2012, on the ground that the Plaintiff did not reside in the instant apartment for at least five years, the Defendant issued the instant disposition imposing OOO on the Plaintiff on November 1, 2012.

[Ground of recognition] Facts without dispute, Gap 1, Eul 6-1, 2, and 7, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The Plaintiff’s work on the instant apartment is going to China and the Plaintiff’s family members failed to reside in the instant apartment for not less than five years. As such, the transfer of the instant apartment is a case where a constructed rental house under the Rental Housing Act is acquired and transferred pursuant to the proviso of Article 154(1)1 of the Enforcement Decree of the Income Tax Act, and the period of residence from the date of lease of the relevant constructed rental house to the date of

2) Even if the proviso of Article 154(1)1 of the Enforcement Decree of the New Year’s History is not applicable, considering that the Plaintiff’s long-term Chinese employment and the seller due to the Plaintiff’s E EE’s accusation, the transfer of the instant apartment constitutes the transfer of the instant apartment due to the entry into school, circumstances in work, medical treatment of diseases, or other inevitable reasons prescribed by Ordinance of the Ministry of Strategy and Finance, considering the inevitable circumstances of the seller due to the Plaintiff’s E EE

(b) Fact of recognition;

1) The plaintiff was issued as a Chinese factory of DDD and thereafter, from September 21, 2005 to January 31, 2009, the following day after the lease of the apartment of this case. The plaintiff's family members resided in China from January 31, 2006 to January 31, 2009, while the plaintiff again was issued as China, and is residing in China from February 1, 2010 to January 31, 2009.

2) On July 2, 2013, EE, the Plaintiff’s wife, received a clinical examination by referring to the Plaintiff’s Osung Hospital in the main lake and marsh to fear of depression, uneasiness, social depression, and high place. As a result, the Plaintiff’s work, etc., who is the husband, led to the Plaintiff’s obscing, isolation, depression, and senscing. At present, E was considered to have high possibility of being related to internal misscept, extreme fear of being left, and absence of psychological safety bases.

[Ground of recognition] Each entry in Gap 2 and Eul 3-5 (including paper numbers), and the purport of the whole pleading

C. Determination

1) Whether the proviso of Article 154(1)1 of the Enforcement Decree is applicable

In light of the above facts, even if the Plaintiff’s long-term work in China and the Plaintiff’s family living in the instant apartment during the period between September 20, 2005 and May 12, 201 when the Plaintiff transferred the instant apartment from September 12, 201, all of his household members including the Plaintiff resided in the instant apartment from September 20, 2005 to January 30, 2006, the period of living in the instant apartment is about 4 months and about 2 years and 4 months from February 1, 2009 to May 12, 201, and was merely about 2 years and 8 months from May 201.

2) Whether it falls under the proviso of Article 154(1)3 of the Enforcement Decree

The proviso of Article 154(1)3 of the Enforcement Decree of the Income Tax Act provides that the transferor of a house shall not be subject to the restriction on the retention period and residence period prescribed in the main sentence. However, the above proviso provides that the transferor of the house shall have resided in the house concerned for not less than one year, and if the provision provides that the transferor of the house shall have resided in the house concerned for not less than three years with respect to the scope of one house for one household, it shall be deemed that the owner of the house in question has resided in the house in question for not less than one year. According to the above facts, according to the above recognition, the plaintiff was unable to reside in the apartment of this case from September 30, 2010 to May 12, 2011, and the residing period of the plaintiff's family members is merely eight months, since the plaintiff's long-term work in China and the disease of the plaintiff's wife, etc., the above assertion by the plaintiff is without merit.

3. Conclusion

Thus, the plaintiff's claim of this case is dismissed for reasons.