[양도소득세부과처분취소청구사건][고집1983(형사특별편),238]
Whether capital gains from the house registered on the resident registration card is subject to taxation, but actually resided for at least six months;
In the resident registration card, if it is falsely registered that the person has resided less than six months on the wind at which the report of transfer and transfer is delayed, but it has been found that he/she actually resided for not less than six months, income from the transfer of such real estate is non-taxable income prescribed in Article 5 subparagraph 6 (i) of the former Income Tax Act (Act No. 3175 of December 28, 1979) and Article 15 (1) and (7) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 9960 of July 11, 1980).
Article 5 subparagraph 6 (i) of the Income Tax Act (Law No. 3175)
Plaintiff
Head of Western Tax Office
The disposition of imposition of KRW 4,793,155 and the defense tax of KRW 479,314 against the plaintiff as of October 16, 1981 by the defendant against the plaintiff as of October 16, 1981 is revoked.
Litigation costs shall be borne by the defendant.
The same shall apply to the order.
The facts that the defendant imposed 4,793,155 won and 479,314 won on the plaintiff as of October 16, 1981 as an occasional transfer income tax of 4,79,000 won and 479,314 won on the plaintiff as of October 16, 1981 are not in dispute between the parties concerned, and the plaintiff purchased the apartment house of 246-1, 14 and 479,314 won, and transferred it to the non-party concerned on March 3, 1980, after taking into account the whole purport of the arguments in the evidence Nos. 3 (Register), 4-1, 1-2, 1-3, 3-2, 1-3, 197, and 24-1, 246-2, Gangnam-gu, Seoul Special Metropolitan City (hereinafter referred to as "the apartment house of this case").
Accordingly, the defendant examined the period in which the plaintiff resided in the apartment of this case on the resident registration card of June 17, 197. The plaintiff's transfer date is revealed to be November 15 of the same year. The transfer date of the same year, applying each provision of subparagraph 6 (i) of Article 5 of the Income Tax Act at the time of the above transfer (Act No. 3175 of December 28, 1979) and Article 15 (1) and (7) of the Enforcement Decree of the same Act (Enforcement Decree before July 11, 1980) and Article 15 (1) and (7) of the same Enforcement Decree, the period in which the plaintiff resided in the apartment of this case is less than six months as above under the resident registration card, and thus the plaintiff is liable to pay the transfer income tax, etc. on the above transfer date, and the acquisition price is assessed as 14,397,300 won, 5,384,402 won, and each tax amount is assessed against the plaintiff as attached tax invoice of this case.
The Plaintiff asserts that the transfer of the instant apartment from April 27, 197 to November 10 of the same year by the Plaintiff is at least six months, and that the transfer of the Plaintiff’s apartment from April 27, 1977 is the transfer of one house for one household subject to non-taxation of capital gains tax. The Defendant asserts that one of the requirements is to be the so-called one house for one household, the owner must reside in the instant apartment for at least six months, and that the number of months of residence in this case should be calculated on the resident registration card.
Pursuant to Article 5 subparagraph 6 (i) of the Income Tax Act, Article 15 (1) and (7) of the Enforcement Decree of the same Act, the term "one house for one household which is exempt from capital gains tax" means that the resident owns one house in the Republic of Korea and shall reside for not less than six months, and the number of months of residence shall be calculated based on the number of months from the date of transfer to the date of transfer from the date of transfer under the resident registration card, and the number of months of residence shall be calculated based on the number of months from the date of transfer under the witness witness witness witness witness witness witness witness witness witness witness witness witness witness witness witness witness witness witness witness witness witness witness witness witness and witness witness evidence Nos. 5-1 and 2 (written confirmation) of the same Article on April 27, 197 and the plaintiff resided in the apartment of this case from the date of transfer to October 10, 197 of the same year. However, the plaintiff's transfer of the apartment of this case from the date of transfer to the date of transfer under the resident registration card may be acknowledged as the fact that the plaintiff delayed transfer.
According to the above facts, the plaintiff actually resided in the apartment of this case for not less than 6 months, and as long as the facts of residence have been revealed for not less than 6 months, the number of months of residence shall not be calculated by the entry in the above resident registration card, and further, as to the fact that the plaintiff owned one house in Korea at the time of the above transfer, the defendant does not clearly dispute the fact that the plaintiff owned one house in Korea. The income from the transfer of the plaintiff's apartment of this case is non-taxable income of the smallest income tax stipulated in Article 5 subparagraph 6 (i) of the Income Tax Act and Article 15 (1) and (7) of the Enforcement Decree of the same Act, and accordingly, defense tax shall not be imposed pursuant to Article 3
Therefore, since the transfer income tax of this case and the detailed and disposition of the same defense should be revoked illegally, the plaintiff's claim to seek it shall be accepted as reasonable, and the burden of litigation costs shall be determined as per Disposition by applying Article 14 of the Administrative Litigation Act and Article 89 of the Civil Procedure Act respectively.
Judges Yoon Sang-ho (Presiding Judge)