[Case Number] High Court Decision 2013Da2940 (No. 22, 2013)

[C] Assignment [Type of Decision] Dispact

[Summary of Decision] difficulty in accepting the claim claim as it was not registered as a rental house as of the date of transfer

[Related Acts] Article 155 of the Enforcement Decree of the Income Tax Act

The appeal is dismissed.

1. Summary of disposition;

A. On November 22, 2012, the claimant transferred the OO (hereinafter “transfer house”) and reported and paid the relevant transfer income tax (two houses per household). On February 20, 2013, the claimant filed an application for rectification to request the refund of the OO members of the transfer income tax paid for the following reasons: (a) the relevant rental house of OO (4 and 5 stories above the ground; hereinafter “base rental house”) is not included in the number of houses pursuant to Article 155(19) of the Enforcement Decree of the Income Tax Act; and (b) the relevant rental house of OO (hereinafter “OO-rental house”) is not included in the number of houses.

B. The disposition agency rejected a claim for correction on May 7, 2013, deeming that the transferred house does not constitute non-taxation on one house for one household, on the ground that the key rental house was not registered with the local government as a rental house.

C. The claimant appealed and filed an appeal on June 17, 2013.

2. Opinions of the claimant and disposition agency;

A. The claimant's assertion

(1) Facts

(A) After registering as a rental business operator, the claimant leased the first floor of the rental house to the third floor above the ground and amusement facilities; the fourth floor above the ground and the fifth floor above the ground to the studio and studio; and the first floor above the rooftop to the inn.

(B) The key rental housing (the fourth and fifth floors) was first used in a house for the purpose of running a rental housing business, and was subdivided by each unit, and was intended to register the 4th floor as a rental housing for the purpose of the 5th floor and the 7th floor as a rental housing. However, the 4th floor and the 5th floor under the Building Act cannot be reported as a rental housing on the ground that the 4th floor and the 5th floor were not distinguished by each unit (the Claimant has continued to operate a rental housing business by leasing the key rental housing to the Lessee, and has fulfilled his duty to report and pay taxes faithfully as a rental business operator).

(2) The Claimant

The claimant is merely a fact that he/she had intended to register the first controversial rental housing as a rental housing, but has failed to make a formal registration due to lack of administrative procedures, etc., and the key rental housing falls under the rental housing that has been leased for several years, such as where each subparagraph is divided and separated from each other, and it is clear that he/she falls under the rental housing which has been leased business for several years, and not only meets the requirements for non-taxation from one house for one household prescribed by the Rental Housing Act, etc., but also accords with the purpose of the legislation.

(b) Opinions of disposition agencies;

The requirements for taxation, non-taxation, or reduction or exemption under the principle of no taxation without representation are interpreted as the statutory text, barring any special circumstance, so long as the requirements for recognition of long-term rental houses under Article 155 (19) of the Enforcement Decree of the Income Tax Act (as of the date of transfer, the long-term rental houses are registered and leased as rental houses under Article 6 of the Rental Housing Act) are not satisfied, one household

3. Hearing and determination

A. Key issue

The legitimacy of the claim claim that the key rental house constitutes a long-term rental house under Article 155 (19) of the Enforcement Decree of the Income Tax Act and constitutes a non-taxation for one household at the time of transfer of the house.

B. Facts and determination

(1) The total floor area is 1,807.99 square meters in the building register of the instant rental housing; the building area is 301.75 square meters in the building register of the instant rental housing; the neighborhood living facilities (stores, restaurants) with the 140.435 square meters in the underground 1st floor; the 81.045 square meters in the 1st floor below the ground floor is amusement facilities (general amusement restaurants); the boiler room with the 69.43 square meters in the underground 1st floor; the boiler room with the 251.24 square meters in the 1st floor; the neighborhood living facilities (stores, restaurants); the 39.67 square meters in the 2nd floor; the 156.72 square meters in the 2nd floor (general amusement restaurants); the 301.75 square meters in the 301.75 square meters in the 301.75 square meters in the 301.75 square meters in the 197 square meters in the 19.

(2) The claimant asserts that the key rental house is merely a house which has not been formally registered due to the lack of administrative procedures, etc., and that it constitutes a rental house which has been leased for several years, and that it meets the requirements for non-taxation from one house for one household under the Rental Housing Act, etc., as it is apparent that it falls under the rental house which has been leased for several years, and that the disposition agency does not meet the requirements for recognition of long-term rental house under Article 155(19) of the Enforcement Decree of the Income Tax Act, and that it has not been registered as a rental house under the Rental Housing Act for the key rental house.

(3) According to Article 155(19) of the Enforcement Decree of the Income Tax Act, Article 167-3(1)2 of the Enforcement Decree of the same Act and Article 167-3(1)2 of the same Act stipulate that a household possessing a house for long-term lease under Article 167-3(1)2 of the Enforcement Decree of the same Act and a house for long-term lease in the Republic of Korea shall be one house owned in the Republic of Korea if a house for long-term lease is leased as of the date of transfer. Article 154(1)2 of the Enforcement Decree of the same Act provides that a house for long-term lease shall be leased by a resident registered as a business operator under Article 168 of the Income Tax Act and a rental business operator under Article 6 of the Rental Housing

(4) If a resident who leases a house meeting the requirements for a long-term rental house under Article 167-3 (1) 2 of the Enforcement Decree of the Income Tax Act as of the date of transfer transfers the house owned and resided in it for two or more years, the long-term rental house shall not be deemed a house and shall be deemed as one house and shall be exempted from capital gains tax. In this case, it is difficult to view the transferred house as the object of non-taxation because the issue of the house appearing as a detached house in the certified copy of the register was not registered as a rental house as of the date of transfer.

4. Conclusion

This case shall be decided as ordered in accordance with Articles 81 and 65 (1)2 of the Framework Act on National Taxes, because the petition for a trial has no merit as a result of the review.