The instant building remodeled into a multi-family house shall not be deemed a detached house when determining one house for one household.

As the objective situation of the building of this case does not meet the requirements of multi-family house under subparagraph 1 (c) of attached Table 1 of the former Enforcement Decree of the Building Act, the building of this case without relation to whether there was a division of the deceased is not included in the subject of Article 155(15) of the former Enforcement Decree of the Income Tax Act

The contents of the judgment are the same as attachment.

2018Gudan7864 Revocation of Disposition of Imposing Transfer Income Tax

Sung ○○ 1

Head of Gyeonggi Mine District Office

on July 26, 2019

on October 23, 2019

1. All of the plaintiffs' claims are dismissed.

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

Cheong-gu Office

The Defendant’s imposition of capital gains tax of KRW 264,770,460 on August 21, 2017, which belonged to the year 2015, shall be revoked.

1. Details of the disposition;

A. On June 15, 2015, Plaintiff Sung*’s father*’s father, Plaintiff*’s spouse* On December 9, 2018, which was after the instant lawsuit was filed, the deceased on December 9, 2018; hereinafter referred to as “the deceased”) transferred the instant building and its ground (hereinafter referred to as “instant building”) owned by ○○○-gu, Seoul, ○○○-dong, ○○○○-dong, 175.2 square meters (hereinafter referred to as “instant land”). The instant building was destroyed on July 7, 2015, immediately after the transfer.

B. The instant building consists of one underground floor and four above the ground level on the registry. The underground floor was a store and a parking lot for the first floor, a store and a parking lot for the second floor, a store for the second floor, and a store for the third floor and the fourth floor. However, the deceased illegally remodeled part of the first floor and the second floor among the instant building, and unlike the classification of the use of the registry, the first floor on the ground level (101, 102) unlike the classification of the use of the registry was a cosmetic and two residential spaces (101, 102).

In other words, the second floor was composed of two residential spaces (No. 201, No. 202), and separate registers.

The third and fourth floors were installed as well as the use in each public account book.(501) The third and fourth floors were installed as well.

Housing has been used as a house)

C. After the decedent transferred the instant land and building, he reported the transfer income tax by applying the non-taxation provision on one house for one household. However, the Seoul Regional Tax Office, among the comprehensive audits against the Defendant, examined the details of the deceased’s transfer income tax, and as the number of floors used for the instant building is four, it constitutes a multi-household house (multi-household house) other than a detached house (multi-family house) in attached Table 1 of the Enforcement Decree of the Building Act, and therefore, the entire building of this case is deemed as one house, and thus, instead of applying the non-taxation provision on one house for one household, determined that only one house for one household (401), one house for which the deceased resided, and ordered the Defendant to rectify the transfer income tax of the deceased.

D. Accordingly, on August 21, 2017, the Defendant: (a) to the Deceased on August 21, 2017, KRW 264,770,460 for transfer income tax reverted to year 201

B. A correction and notification was made (hereinafter referred to as the "disposition of this case").

E. On November 16, 2017, the Deceased, who was dissatisfied with the instant disposition, requested a trial on November 16, 2017, but was subject to tax trial

On April 11, 2018, the Board dismissed the deceased's request for adjudication.

[Ground of Recognition] Unsatisfy, Gap evidence 1 to 4, Eul evidence 1, 2 and 3

(2) The purport of the whole pleading

2. Whether the instant disposition is lawful

A. Summary of the plaintiffs' assertion

The deceased registered the instant building as a “multi-unit house” and used it as a “multi-unit house” and transferred the entire building as a single unit of sale and purchase, so the entire building should be regarded as one house pursuant to the proviso of Article 155(15) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 26763, Dec. 28, 2015; hereinafter the same shall apply). Moreover, even if the instant building was illegally reconstructed, the deceased did not acquire the instant building as one house (house) and registered, transferred, and intended to take it as a sectioned building, so the instant building should be regarded as a multi-unit house regardless of whether it was remodeled. Moreover, the instant building did not meet the requirements of multi-unit house (multi-household house). As such, the Defendant’s disposition of this case on the premise that the instant building was a multi-unit house is a multi-unit house is erroneous

B. Relevant statutes

Attached Form is as shown in the attached Form.

C. Determination

1) Under the principle of no taxation without law, the elements of taxation, non-taxation, or tax reduction and exemption are prohibited, and the interpretation of tax laws and regulations shall be strictly interpreted in accordance with the text of the law, barring special circumstances, and shall not be extensively interpreted or analogically interpreted without reasonable grounds (see, e.g., Supreme Court en banc Decision 2000Du7131, Mar. 15, 200

2) In applying Article 155(15)15 of the former Enforcement Decree of the Income Tax Act, when Article 154(1) of the Enforcement Decree of the same Act, which provides for the exemption from capital gains tax on one house for one household, multi-family houses falling under subparagraph 1(c) of attached Table 1 of the Enforcement Decree of the Building Act, shall be deemed one house: Provided, That where the relevant multi-family house is not transferred by the partitioned part but by the unit of sale and purchase, the whole house shall be deemed one house; and subparagraph 1(c) of attached Table 1 of the former Enforcement Decree of the Building Act (amended by Presidential Decree No. 26974, Feb. 11, 2016; hereinafter the same shall apply) provides that "multi-family houses shall have three floors or less (excluding underground floors) used as a house meeting all the following requirements, and the total floor area of one house used for the consent of 600 square meters or less (round 2) shall not exceed 1939 square meters."

Unlike the classification of usage in the public register by illegally remodeling the building of this case, the deceased used 4 floors from 1 to 4 floors on the ground (five floors in the case of including the rooftop room). As seen earlier, the building of this case does not meet the requirements of multi-family house as stipulated in subparagraph 1 (c) of attached Table 1 of the former Enforcement Decree of the Building Act ("three floors or less"), and it does not fall under Article 155 (15) of the former Enforcement Decree of the Income Tax Act, which applies only to multi-family houses falling under the above item (c). Thus, even if the deceased transferred the building of this case to a single unit of sale, the whole building of this case cannot be regarded as a single house by applying the proviso of Article 155 (15) of the former Enforcement Decree of the Income Tax Act, such as the plaintiffs' assertion.

Although the plaintiffs asserted that even if the building in this case was illegally remodeled, there was no "the act of classification of the deceased who want to be a sectioned building", it should still be viewed as a detached house. However, as seen above, Article 15 (15) of the former Enforcement Decree of the Income Tax Act provides that "the multi-family house falling under subparagraph 1 (c) of attached Table 1 of the Enforcement Decree of the Building Act" shall be applied only, and the attached Table 1 (c) of the former Enforcement Decree of the Building Act also stipulates the requirements of multi-family house based only on "the objective situation of the building in this case" without asking "the existence of the owner of the building in this case" as stated by the plaintiffs, so long as "the objective situation of the building in this case" does not meet the requirements of multi-family house in subparagraph 1 (c) of attached Table 1 of the former Enforcement Decree of the Building Act, it shall not be deemed that the building in this case is subject to the application of Article 155 (15) of the former Enforcement Decree of the Income Tax Act without any relation to such interpretation.

3) Meanwhile, the instant building is not a multi-family house prescribed in subparagraph 1 (c) of attached Table 1 of the former Enforcement Decree of the Income Tax Act, and the proviso of Article 155(15) of the former Enforcement Decree of the Income Tax Act does not apply to the main sentence of the same paragraph as well. Therefore, the instant building cannot be deemed a single house for the part partitioned so that one household can reside independently pursuant to the main sentence of Article 155(15) of the former Enforcement Decree of the Income Tax Act, and ultimately, it cannot be deemed a single building combined with housing and non-housing. As such, Article 154(3) of the former Enforcement Decree of the Income Tax Act (amended by Act No. 14389, Dec. 20, 2016) provides that “when Article 89(1)3 of the former Enforcement Decree of the Income Tax Act (amended by Act No. 14389, Dec. 14, 2016) is legitimate, it shall not be deemed that the remaining part of the building that is non-taxable housing or non-taxable.

3. Conclusion

Therefore, the plaintiffs' claim of this case is dismissed in entirety as it is without merit, and it is so decided as per Disposition.