Seoul High Court 2012Nu33227 ( October 16, 2013)

In the case of a building, the structure, functions, facilities, etc. of which are originally used by the principal or a third party for a house, it shall be springed as a house.

Since the structure, functions, facilities, etc. of a building are in a state suitable for residence as its original residential purpose, and the residential function is maintained and managed as it is, it shall be viewed as a house in the case of a building in which the principal or a third party can use as a house

2013Du24945 Revocation of Disposition of Imposing capital gains tax

1. The lowestA 2.B

1. Class 2 of the tax office; and

March 27, 2014

All appeals are dismissed.

The costs of appeal are assessed against each party.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Regarding the plaintiffs' grounds of appeal

Whether a building constitutes "house" under Articles 89 (1) 3, 104 (1) 2-3, and 2-5 of the former Income Tax Act (amended by Act No. 9897 of Dec. 31, 2009), shall be determined by whether the building constitutes "house" under Article 89 (1) 3, and Article 104 (1) 2-3, and 2-5 of the same Act, regardless of the classification of the use of the official injury in the building, shall be determined by whether the actual use is a building actually offered for residence (see, e.g., Supreme Court Decisions 87Nu584, Sept. 8, 1987; 2004Du149

The court below acknowledged the facts as stated in its reasoning based on the adopted evidence, and found it reasonable to view the building A as a house, in light of the following: (a) CCC leased the building of this case around July 2002 for the purpose of living by five family members, including itself; (b) one of them resided with the family members from August 11, 2008 in the part of the Adong building composed of the room, floor, kitchen, and kitchen; and (c) CCC extended and reconstructed part of the building of this case to operate a restaurant and alters the structure of the building of this case; (b) although the building of this case was consistently stated to the purport that it maintained the existing state, the building of this case was in a state suitable for residence, and it was actually used as a residence.

Furthermore, the court below rejected the Plaintiff’s assertion that since the head of the Guro-gu Seoul Special Metropolitan City Office regarded the instant building as a neighborhood living facility and imposed property tax on it, the part of the Adong building as a part of the building ought to be deemed a neighborhood living facility, not a house, on the ground that it is difficult to determine the appropriateness of the imposition of property tax because there is no evidence which is the basis for the imposition of property tax, and thus, it is difficult to determine the

Examining the reasoning of the judgment below in light of the aforementioned legal principles and records, the judgment of the court below is just and acceptable, and there is no error in the misapprehension of the rules of evidence, the incomplete hearing, the concept of "housing", the principle of protecting trust, or the principle of fairness in administrative acts, as alleged in the grounds of appeal.

2. As to the Defendants’ grounds of appeal

In full view of the circumstances as indicated in the reasoning that are recognized by the adopted evidence, the lower court determined that the entire area of the building at the time of the transfer of the instant building is 115.5 square meters (the “115.5 square meters in the lower judgment”) and the area of the building A among them is calculated as 39.67 square meters, and that the exceeding part of the disposition imposing the transfer income tax of the instant case is unlawful.

Upon examining the reasoning of the judgment below in light of the records, the judgment of the court below is just and acceptable, and there is no violation of the rules of evidence or incomplete hearing as alleged in the grounds of appeal.

3. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against each party. It is so decided as per Disposition by the assent of all participating Justices on the bench.