Cho High Court Decision 201Do1530 (No. 2011.03)

Transfer of an association member's relocation right that does not meet the requirements for residence shall not be deemed one house for one household.

Where an association member's relocation right is transferred due to the implementation of a housing reconstruction project, the association member's relocation right cannot be viewed as one house for one household, and only one house for one household can be viewed as one house for one household only if the requirements are met, and the requirements cannot be deemed to have been satisfied due to the failure

2011Gudan15193 Revocation of Disposition of Imposing capital gains tax

XX

Gangwon-gu Director of the District Office

October 5, 2011

October 26, 2011

1. The plaintiff's claim is dismissed.

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

The Defendant’s rejection of correction of the transfer income tax for the year 2010, which the Plaintiff appeared to be a clerical error in April 11, 2011 (hereinafter “the Plaintiff appears to be a clerical error in April 8, 2011) is revoked.

1. Details of the disposition;

A. The Plaintiff acquired on April 28, 2003 the land and its ground building in Dongdaemun-gu Seoul Metropolitan Government 000-0 (hereinafter referred to as the “instant house”), but did not reside in the relevant house. A rebuilding project was implemented in the area where it was located and the management and disposal plan was approved on May 23, 2008, and acquired the occupation right of the instant house (hereinafter referred to as “the occupation right of the instant case”). On November 26, 2010, the Plaintiff transferred the occupation right of the instant case.

B. On January 201, when the Plaintiff scheduled and paid the transfer income tax on the right to move in of this case, the Plaintiff did not apply the special long-term holding deduction for the transfer margin after the approval plan for the management and disposal plan, but reported and paid KRW 47,424,527 as the transfer income tax reverted to the year 2010, based on the deduction rate (40/10) under Table 2 of Article 95(2) of the Income Tax Act for the transfer margin of the period prior to the approval for the management and disposal plan (the period between five and six years).

C. On February 11, 2011, the Plaintiff should add the period of possession of the instant right to the Defendant to the period of possession of the instant house. Therefore, on the basis of the period (7 to 8 years) calculated by applying the deduction rate (56/100) under Table 2 of Article 95(2) of the Income Tax Act based on the total period (7 to 8 years) of the ownership period of the instant housing and the instant right to occupancy, the Plaintiff filed a request for correction to rectify the transfer income tax for the year 2010 to KRW 19,710,815.

D. As to this, the Defendant rendered the instant disposition to refuse the Plaintiff’s request for correction on April 8, 2011 on the ground that the amount of special deduction for long-term holding was not possible because the Plaintiff’s right to move in in the instant case did not meet the requirements for non-taxation for one household, and thus, the amount of special deduction for long-term holding is subject to the deduction rate stipulated in Table 1 of Article 95

[Ground for Recognition] Unsatisfy, each entry in Gap evidence 1 to 3 (including a tentative number)

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The proviso of Article 95(2) of the Income Tax Act provides that "in case of assets falling under one house for one household prescribed by Presidential Decree (including the land annexed thereto), it means the amount calculated by multiplying the transfer margin of such assets by the deduction rate by holding period prescribed in Table 2 below." Article 159-2 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 22580, Dec. 30, 201; hereinafter referred to as "Enforcement Decree") provides that "one house for one household prescribed by Presidential Decree" in the proviso of Article 95(2) of the Act means one house for which one household owns one house in Korea as of the transfer date, the house (including the house deemed as one house for one household under Article 155, 155-2, 156-2, and other provisions) is deemed to be unlawful in the Enforcement Decree of the Income Tax Act, and it is also necessary to apply the special deduction of Article 95(2) of the Act to the house for one household to be occupied in Korea.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

The main issue of this case is whether the right to move into the association of this case can be seen as a house under the proviso of Article 95 (2) of the Income Tax Act.

Although a partner's right to move into a house has the nature of a change or extension of a house, since the form of a right to acquire real estate is the right to acquire it, it cannot be viewed as a house, and there is no general provision that regards it as a house in the Income Tax Act and the Enforcement Decree of the Income Tax Act, and if it is necessary to treat it as a house, it has individual provisions such as Article 89 (2) of the Income Tax Act and Article 155 (

Therefore, in the interpretation of the proviso of Article 95(2) of the Income Tax Act, the right of association members to move into a house for one household cannot be seen as a house for one household, and only one house can be seen as a house for one household only when meeting the requirements prescribed in the above provision and Article 159-2 of the Enforcement Decree delegated by the above provision.

However, Article 159-2 of the Enforcement Decree provides that a house shall be deemed one house for one household under Article 155 of the Enforcement Decree, and Article 155-17 of the Enforcement Decree provides that a household that owns an existing house falling under Article 154 (1) of the Enforcement Decree as of the date of the approval plan for the management and disposal plan shall be deemed one house for one household in cases where the household that owns the existing house transfers the right to move into the association. Thus, if the house of this case falls under Article 154 (1) of the Enforcement Decree as of the date of the approval plan for the division of the management plan, the right to move into the house of this case shall be deemed one house for one year old, and the plaintiff shall not reside in the house of this case and shall not meet the requirements of Article 154 (1) of the Enforcement Decree because he does not reside in

Therefore, the disposition of this case which rejected the plaintiff's request for correction to apply the deduction rate (56/100) of Table 2 of Article 95 (2) of the Income Tax Act when adding up the retention period of the plaintiff's right to move in of this case to the house of this case is legitimate, and the plaintiff's assertion is without merit.

3. Conclusion

Therefore, the plaintiff's claim is without merit, and it is dismissed. It is so decided as per Disposition.