2년이상 거주요건은 주민등록전입일부터 전출일까지로 거주 추정규정일 뿐임[국승]
Residential requirements are only a provision for presumption of residence from the date of transfer to the date of transfer of resident registration.
The requirements of residence are presumed to have been resided for more than two years from the date of resident registration to the date of transfer, and if there is proof of opposing facts, the provisions of shouldering the requirements of residence are confirmed to have been only the resident registration in the house registered as resident but also leased without the fact of residence, so the requirements of residence are not satisfied
The contents of the decision shall be the same as attached.
Article 89 (Non-Taxable Transfer Income Tax)
Article 154 of the Enforcement Decree of the former Income Tax Act (Scope of One House for One Household)
1. The plaintiff's claim is dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
The Defendant’s disposition of imposition of capital gains tax of KRW 84,248,130 against the Plaintiff on November 1, 2007 shall be revoked.
1. Details of the disposition;
A. On June 25, 2002, the Plaintiff acquired and owned ○○○○○○○○○dong-dong 1st 2203 (hereinafter “instant house”) and transferred the instant house to Nonparty ○○○○○○ in KRW 720 million on March 15, 2006, and thereafter, calculated gains on transfer on May 30, 2006, deeming the instant house as a non-taxable object for one household, and paid KRW 5,745,126 of transfer income tax accordingly to the Defendant on May 30, 206.
B. As to this, the Defendant issued the instant disposition to rectify and notify the transfer income tax of KRW 84,248,130 on November 1, 2007 on the ground that the Plaintiff did not reside in the instant house for at least two years and failed to meet the non-taxation requirements for one household.
[Ground of recognition] Facts without dispute, Gap 2 through 6 evidence, Eul 1, 2 and 3 evidence (including paper numbers), the purport of the whole pleadings
2. Whether the disposition is lawful;
A. The plaintiff's assertion
From August 18, 2003 to April 17, 2006, the Plaintiff registered as a resident at the domicile of the instant house for two years and eight months, and met two or more years of residence pursuant to Article 154 (4) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 20618, Feb. 22, 2008; hereinafter referred to as the “former Enforcement Decree of the Income Tax Act”). In addition, the Plaintiff, a lessee, resided in the instant house from May 25, 2003 between directors. The Plaintiff, a lessee, entered into a lease contract on the instant house, but the Plaintiff had to be able to use one square column in the instant house from the apartment house, which was under a special agreement, and thereafter, the Plaintiff did not look at the instant apartment house for 20 or more years from the date of the instant apartment house, and the Plaintiff did not live in the instant apartment house for 20 or more years from the date of the instant apartment house.
B. Key issue of the instant case
Whether the Plaintiff has resided in the instant housing for at least two years during the retention period.
(c) Related statutes;
Article 89 (Non-Taxable Transfer Income Tax Act)
Article 154 of the Enforcement Decree of the former Income Tax Act (Scope of One House for One Household)
D. Determination
(1) Article 154(1) of the former Enforcement Decree of the Income Tax Act, which was delegated by Article 89(1)3 of the Income Tax Act, provides that the period of residence shall be two or more years in the case of a house located in Seoul as a non-taxation requirement for one household, and Article 154(5) of the same Act provides that the period of residence shall be the period from the date of transfer in the resident registration card to the date of transfer. The purport of the above provision is to provide for the convenience of proving the period of residence, and it is presumed that the person has resided in the relocated domicile from the date of transfer in the resident registration card to the date of transfer, and thus, if there is a proof of opposing facts, such presumption is broken (see, e.g., Supreme Court Decision 86Nu5
(2) According to Gap evidence No. 11, the plaintiff could recognize the fact that he had transferred the house of this case to his domicile on August 28, 2003, and on April 17, 2006. However, in full view of the purport of argument as to Gap's evidence No. 12, 16, Eul and 5 (including the serial number) on June 26, 2001, ○○○, a lessee, was living in the house of this case and moved it to the house of this case on August 29, 2003. The plaintiff could not be viewed as having reported the lease contract for the house of this case to the plaintiff on January 28, 2004, and the plaintiff could not be viewed as having reported the transfer of the house of this case to the housing of this case to ○○○, a non-resident's residential house of this case to 20 years after having reported the transfer of the house of this case to 10 years, and the plaintiff could not be viewed as having been using the house of this case to 20 years.
(3) If so, the disposition of this case on the premise that the plaintiff did not reside in the housing of this case for more than two years is legitimate.
3. Conclusion
Therefore, the plaintiff's claim of this case is dismissed for reasons.