재산과 소득이 있다는 사정만으로 생계를 달리한다고 볼 수 없음[국승]
It cannot be viewed that a living difference solely on the ground that property income exists.
Even if there is property income, there is no evidence to prove that there has been a separate burden of living expenses (such as housing expenses and food expenses) with the Plaintiff, who is a child, and thus, it cannot be deemed that there was a different living with the Plaintiff.
Article 89 (1) of the former Income Tax Act
Incheon District Court 2017Guhap5452 Revocation of Disposition Rejecting Transfer Income Tax Correction
○ ○
○ Head of tax office
2018.24
oly 12, 2018
1. The plaintiff's claim is dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
Cheong-gu Office
The Defendant’s refusal to rectify capital gains tax of KRW 33,440,750 against the Plaintiff on January 12, 2017 shall be revoked.
1. Details of the disposition;
A. On January 16, 2008, the Plaintiff acquired ○○ apartment, ○○ apartment, ○○○○○, ○○ apartment (hereinafter “instant apartment”) and transferred the instant apartment to Kim Dong-dong on December 15, 2015. At the time of the Plaintiff’s possession of ○○○○, ○○, ○○, ○○, ○○, ○○, ○○, ○○ (hereinafter “instant 2 apartment”) and the Plaintiff’s right to request correction of KRW 154(1)3(a) of the former Income Tax Act (amended by Act No. 14389, Dec. 20, 2016; hereinafter the same shall apply), but the Defendant did not request correction of KRW 154(1)6(1) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 26763, Dec. 28, 2015; hereinafter the same shall apply).
C. The Plaintiff appealed and filed an objection on April 5, 2017. However, the Defendant dismissed the objection on May 11, 2017. The Plaintiff filed an appeal with the Tax Tribunal on June 22, 2017, but the Tax Tribunal dismissed the appeal on September 5, 2017.
[Ground of recognition] Facts without dispute, Gap 1 through 5, 16 evidence, Eul 1 (including branch numbers for those with serial numbers) and the purport of the whole pleadings
2. Whether the instant disposition is lawful
A. The plaintiff's assertion
The important criteria for determining whether a household constitutes an independent household under the non-taxation provision on one house for one household is whether it is identical to that of the Plaintiff. However, although the Plaintiff and the domicile or residence of the Plaintiff are identical, △△△△△△△△△ KRW 600,000 won per month, and KRW 1,000,000 won per month, and the national pension income of KRW 35-3,90,000 per month, have been used for living expenses by withdrawing KRW 60-7,000 per month, and thus does not constitute a family member who shares the same livelihood with the Plaintiff. Therefore, the Plaintiff’s non-taxation provision on one
B. Relevant statutes
It is as shown in the attached Form.
C. Determination
1) Article 89(1) of the former Income Tax Act provides that no capital gains tax shall be imposed on income accruing from the transfer of one house for one household prescribed by Presidential Decree. Article 154(1) of the Enforcement Decree of the same Act provides that "one house for one household prescribed by Presidential Decree means that a household comprised by a resident and his/her spouse together with his/her family members who make a living at the same address or same place of residence has one house in the Republic of Korea as of the date of transfer, and that the period of possession of the relevant house is two
The term "living together with a person living together" under the Income Tax Act refers to a person living together with a person living together in reality, and a person living together with a person living together with a person living together with a person living together with a person living together with a person who does not necessarily require the same household on the basis of resident registration but does not have the person living together with a person living together with a person living together, and means a unit of living with the same person with a person living together with a person living together (see Supreme Court Decision 88Nu3826, May 23, 198).
2) According to the overall purport of evidence Nos. 2, 6, and 11 as well as the overall purport of the arguments and arguments, it is recognized that the Plaintiff’s mother Park Jong-gu, the Plaintiff’s mother, has a total of KRW 60 to 650,00 won of the monthly rental income and KRW 1 million of the national pension income of KRW 35 to 390,000,000,000 of the monthly rental income.
Meanwhile, according to the overall purport of evidence Nos. 4 and 1 and 2 as well as the entire arguments, the Plaintiff was registered as his/her dependent and paid the health insurance fee. The Plaintiff was also entitled to income deduction from 2012 to 2015 with his/her dependent with his/her global income tax year-end planning for global income tax year-end, and the Plaintiff was subject to income deduction; on March 5, 2008, he/she reported the move-in report to the location of the first apartment of this case, which is the Plaintiff’s domicile; on January 22, 2013, the Plaintiff and the household members agreed to move to another domicile with the Plaintiff on December 14, 2015 and July 4, 2016.
It is insufficient to back to the situation of ‘the situation of living, which is presumed to have been residing together with the Plaintiff in the first apartment of this case on the sole basis of property and income to the Park Jong-gu and Park Jong-gu.' In other words, even if the Park Jong-gu has an income to the plaintiff, there is no sufficient evidence to prove that it has been living together with the Plaintiff, who is a child, and has separately borne the living expenses (such as dwelling expenses and food expenses). Therefore, it is difficult to view that Park Jong-gu had a different living with the Plaintiff.
3) Thus, the instant disposition made by the Defendant to the same purport is lawful.
3. Conclusion
Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so decided as per Disposition.