Cho High-2016-Mining-599 ( October 24, 2016)

It is subject to taxation because the area other than at the time of transfer is greater than the housing area.

The underground room, the first floor room, the outdoor toilet, etc. can not be counted in the area of the house because they were used as a warehouse, etc., and as a result, since the area of the other house is more than the area of the house, it is subject

Article 89 of the Income Tax Act [Non-taxable Capital Gains]

Jeonju District Court 2016Gudan537 ( October 15, 2017)

IsaA

BB Director of the Tax Office

December 21, 2016

2017.02.15

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The Defendant’s disposition of imposition of capital gains tax against the Plaintiff on November 4, 2015 is revoked.

1. Details of the disposition;

A. On September 25, 2014, the Plaintiff: (a) transferred an O-O-O-289.6 square meters and two-story buildings, etc. (hereinafter “instant building”) acquired in KRW 185,00,000 on March 3, 2010 to one household, and filed a non-taxation report on capital gains tax as one house for one household, when the O-O-O-6 square meters and the two-story buildings (hereinafter “instant building”) acquired in KRW 185,00,000,000.

B. The Defendant calculated the use and size of each floor of the instant building as indicated below, and excluded the tax exemption for one household on the ground that the housing area of 116.83 square meters is less than 148.28 square meters in a commercial building area, and notified the Plaintiff of KRW 44,674,230, capital gains tax belonging to the year 2014 on November 4, 2015 (hereinafter “instant disposition”).

Floors

Current status

Area of a square meter;

Use

Underground

Warehouse

38.16

Common

1th floor

Partition 5

85.28

Commercial buildings

Bank of Korea

8.12

Commercial buildings

The management office

9.12

Commercial buildings

Toilets

3.6

Commercial buildings

A stairs room;

3.1

Housing:

Wards

20.52

Common

The suspender;

4.56

Common

Boiler rooms

2.1

Common

Outdoor toilets

10.04

Common

2nd floor

Embankments, stations, etc.

80.51

Housing:

Classification of Area

Housing:

83.61

16.83

Commercial buildings

106.12

148.28

Common

75.38

C. On February 1, 2016, the Plaintiff filed an appeal on the instant disposition, but was dismissed on June 24, 2016.

[Reasons for Recognition] Facts without dispute, Gap 13, 14 evidence, Eul 1, 2, and 3 evidence, the purport of the whole pleadings

2. Determination on the legitimacy of the disposition

A. The plaintiff's assertion

First, as long as the structure, function, or facility of the first floor of the building of this case is in a state suitable for residence as its original residential purpose and can be used as a house at any time because the residential function is maintained and managed as it is, the plaintiff should be deemed as a commercial building; second, the ground room 38.16 square meters of the underground room is a house as the plaintiff's individual cremation; third, the ground ground for the use of the first floor toilet for the use of the storage room for a long time after the water pipe was removed, and the customers of the first floor accommodation used it as a storage for the use of the storage room for a long time; and the passage of the first floor accommodation is difficult to be used for a very narrow and difficult way; fourth, the plaintiff's family as a washing room of the first floor of this case, and the disposition of this case should be revoked by unlawful use for the purpose of living.

(b) Relevant statutes and administrative rules;

Income Tax Act

Article 89 (1) No income tax on capital gains (hereinafter referred to as "capital gains tax") shall be levied on the following income:

3. Income generated from transfer of any of the following houses (excluding expensive houses the value of which exceeds the standard prescribed by Presidential Decree) and land appurtenant thereto, the area of which is within the area calculated by multiplying the area of which a building is built by the multiple rates prescribed by Presidential Decree for each region (hereafter referred to as "land annexed to a house" in this Article):

(a) Where one household owns one house, which meets the requirements prescribed by Presidential Decree;

Enforcement Decree of the Income Tax

Article 154

(3) When applying Article 89 (1) 3 of the Act, where a single building is combined with a house and a building other than a house exists, the entire building shall be deemed housing: Provided, That when the total floor area of a house is smaller than or equal to the total area of a house other than a house, the part other than the house shall not be deemed housing.

(4) In cases falling under the proviso to paragraph (3), land appurtenant to a house shall be calculated by multiplying the total area of the land by the ratio of the total floor area of the building to the total area.

General Rule 89-19 of the Income Tax Act / [Calculation of Housing Area for Underground Room of Combined Housing]

The underground room of a combined use house shall be determined according to the actual use, and if the use is not clear, it shall be calculated in proportion to the ratio of the area of the house and the area other than the house

C. Determination

(1) Whether the first floor is a house or not

In full view of the purport of the pleadings as a result of Gap 2, 6, 7, 8, 9, 12 evidence, Eul 2, 3, and 5 evidence, and the overall purport of the pleadings, the plaintiff paid KRW 111,821,90 to O banks and paid KRW 111,821,90 around January 201 of the building of this case by classifying at least one floor among the buildings of this case into at least one room by installing a toilet in each room, and then operating a lodging business with the trade name of "Arhs" and being used as a lodging facility even after the transfer. Thus, the plaintiff's assertion in this part is without merit.

(2) Whether an underground room is a house

According to Gap evidence No. 2 and Gap evidence No. 4-1, the plaintiff used the underground room as the plaintiff's personal chemical room, but the plaintiff asserted that the ground room was used for the purpose of storing the effective food, etc. at the time of a request for a trial. Thus, if the first floor of the building in this case was used for the purpose of the warehouse according to the plaintiff's assertion, it is reasonable to view that the building in this case was used for the purpose of the warehouse, as long as it was used for the purpose of the lodging business, it is not a house facility, and therefore, the plaintiff's assertion on this part is without merit.

(3) Whether an outdoor toilet is a house

According to the evidence Nos. 2 and 13, it can be recognized that outdoor toilets were used for official use in the "detailed area by purpose" submitted by the plaintiff at the time of tax investigation. If outdoor toilets were used as warehouses as alleged by the plaintiff, it is reasonable to view that the first floor of the building of this case was used in the lodging business, so long as they were used in the lodging business, it is used for the storage of the equipment of the accommodation facility that is not only the housing fixtures. Thus, the plaintiff's assertion on this

(4) Whether the main room of the first floor is common

According to the statements or images of evidence Nos. 2, 6, and 9, it is stated that the first floor room is being used as a commercial building, and the second floor floor floor plan also includes the second floor which is used as a residential purpose, and there is a separate room for the second floor. As long as the first floor is used as a lodging business, it is reasonable to view that the first floor room was used as a lodging business, and therefore, the plaintiff's assertion on this part is without merit.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit.