Scope of one house for one household under Article 154 (1) of the Enforcement Decree of the Income Tax Act

Expenses for appeal shall be borne by the plaintiff.

The reasoning for our court’s explanation on this case is as follows: Article 8(2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act are as follows.

[1] The plaintiff alleged that the actual occupancy in △△△ apartment 100 00 00 - 000 - 0000 - 15, 2000 - (hereinafter referred to as "the apartment of this case"), which was sold to the plaintiff in the court of political party, constitutes one house non-taxation requirement for one household as of the transfer date, but it is difficult to believe that each of subparagraph 8 1 through 6 of the evidence Nos. 8, which seems consistent with the above, is stated. Even if according to the response of △△△ apartment management office and △△△ Construction Co., Ltd., the fact that the plaintiff paid the balance of purchase of the apartment of this case to △△△△△△△, which was made on September 21, 2009, the plaintiff did not permit the occupancy before receiving the balance, it is clear that the date and time the plaintiff actually moved in the apartment of this case is the next day after September 21, 2009.

The plaintiff's above assertion is without merit.

2. In the trial of the court, the Plaintiff revoked ex officio the disposition of imposition on January 3, 201, and even though the Plaintiff withdraws an objection against the said disposition by reliance on the Plaintiff’s failure to impose capital gains tax on the transfer of the instant case, the Defendant again asserted that the disposition of the instant case was unlawful against the principle of trust protection. However, the Defendant merely revoked the disposition of imposition on January 3, 201 on the ground that there was a defect in delivery of the notice of scheduled taxation notice, and did not indicate any public opinion on the interpretation of tax laws related to capital gains tax. The Defendant’s failure to make a second disposition for two years after the revocation of the disposition of imposition ex officio does not constitute an expression of public opinion by the Defendant. The Plaintiff cannot be deemed to have any non-taxable practice to the extent that the ordinary taxpayer can properly accept it, and the Plaintiff could not prove it entirely. Accordingly, the Plaintiff’s arbitrary examination of the meaning of the Defendant’s act after arbitrary review and the Plaintiff’s withdrawal of the objection against the disposition of imposition of capital gains tax cannot be viewed as the Plaintiff’s expectation or justifiable reasons.

2. Additional determination

A. As to the deficiency of the relevant provision for one household

(1) Summary of the Plaintiff’s assertion

Article 89 (2) of the Income Tax Act provides that "one household as prescribed by the Presidential Decree" shall be defined as "one household", but the Enforcement Decree does not define the concept of "one household" according to delegation under Article 89 (2) of the Income Tax Act.Article 154 (1) of the Enforcement Decree of the Income Tax Act defines the concept of "one house for one household" according to delegation under Article 89 (1) 3 of the Income Tax Act, so the disposition of this case made by the defendant based on the provision of the Enforcement Decree of the Income Tax Act is unlawful.

(2) Determination

The Income Tax Act lists one house for one household prescribed by Presidential Decree as one of non-taxation income (Article 89(1)3(a)), and accordingly Article 154(1) of the Enforcement Decree of the Income Tax Act explicitly defines the concept of one house for one household, while one household comprised of the residents and their spouse together with the family members living together with them at the same address or same place of residence (hereinafter referred to as “one household”) as of the transfer date, which has been holding one house in Korea for two years or more. Article 89(2) of the Income Tax Act explicitly defines the concept of one house for one household even if it falls under one house for one household, since it is an exception to Article 89(1) of the Income Tax Act that imposes capital gains tax on the Plaintiff, it does not seem that the Plaintiff’s own assertion that it was exempt from taxation on capital gains tax, and thus, it cannot be viewed that the Plaintiff’s independent administrative court did not have any other reasons to exclude the concept of “one household” under Article 89(2) of the Income Tax Act from the scope of one household.

B. The assertion regarding the criteria for determining the period of residence

(1) Summary of the Plaintiff’s assertion

Pursuant to Article 154(5) of the Enforcement Decree of the Income Tax Act, the issue of whether one household constitutes one house shall be determined on the basis of the date of transfer and transfer under the resident registration card. Since the Plaintiff completed the move-in report to the apartment of this case on September 1, 2009, which was before the date of transfer of this case, the Plaintiff and newB became an independent household thereafter.

(2) Determination

Article 154 (1) of the Enforcement Decree of the Income Tax Act refers to a family member living together in reality at the same address or same place of residence. The term "family member living together in reality" refers to a family member living together with the same household under the resident registration card, but it does not necessarily require the same household to live in daily life (see, e.g., Supreme Court Decision 88Nu3826, May 23, 1989). Thus, whether a "family member living together in the same address or same place of residence is a family member living together in the same place of residence, regardless of the same resident registration place, it is evident in the legal principle that a family member living together and living together in the same place of residence should be determined according to the period of time from the date of transfer from the date of transfer to the resident registration card. However, although Article 154 (5) of the Enforcement Decree of the Income Tax Act provides that the period of residence here means the period of time from the date of transfer to the resident registration card to the date of transfer, the plaintiff's assertion that the above period of residence period is without merit.

C. Claim on additional tax

(1) Claims related to deferment of collection and determination thereof

The Plaintiff filed an application for the deferment of collection with the Defendant’s objection as to the disposition of January 3, 201, and the Defendant approved the Plaintiff’s application for the deferment of collection on January 31, 201 and did not impose penalty taxes by July 31, 201 of the same year. Thus, it is reasonable to deem that the Defendant granted the Plaintiff the trust that at least the penalty tax would not be imposed upon the Plaintiff according to the approval for the deferment of collection. Therefore, the part of the penalty tax in the instant disposition should be revoked by unlawful means, and at least the Defendant’s delay of collection should be revoked by July 31, 201.

The Defendant imposed and notified capital gains tax of KRW 38,768,539 on January 3, 201 and its additional tax of KRW 48,662,269 on KRW 38,768,539 and its additional tax of KRW 9,89,62,730 on the Plaintiff on January 3, 201, as seen earlier. The Plaintiff applied for the deferment of collection pursuant to Article 15(1)6 of the National Tax Collection Act as the Plaintiff’s economic situation is difficult in full view of the overall purport of the pleadings in the statement No. 7, and the Defendant applied for the deferment of collection pursuant to Article 15(1)6 of the National Tax Collection Act. Accordingly, the Plaintiff’s assertion that KRW 16,600,000,000 among the calculated tax amount of KRW 48,662,260 on the same day does not include additional tax of KRW 17,00,000,000,000 not including additional tax of KRW 17.

(2) The allegation of illegality in the payment notice of penalty tax and its determination

The plaintiff asserts that since the defendant did not state the penalty tax amount and the calculation basis by type in the tax notice, the penalty tax portion among the disposition in this case is unlawful.

When a principal tax and an additional tax are to be imposed as a single tax notice, the individual tax amount and the basis for calculation shall be stated in the tax notice separately; and where multiple types of additional tax are to be imposed, the amount and the basis for calculation thereof shall be stated separately. As such, if only the principal tax and the additional tax are stated without properly distinguishing the individual tax amount and the basis for calculation, and the basis for calculation, etc., of the principal tax and the additional tax, the imposition is unlawful (see Supreme Court en banc Decision 2010Du12347, Oct. 18, 2012).

However, according to Gap evidence No. 1-1, the defendant, while imposing both capital gains tax and additional tax, stated the amount and calculation basis of capital gains tax (tax base and tax rate), and the respective tax amount and calculation basis (tax base and tax rate) of additional tax on the principal tax as well as the additional tax on the additional tax on the basis of the tax payment notice. Thus, if the circumstances are the same, there is no procedural defect in the notice of tax payment among the dispositions in this case. The plaintiff's

3. Conclusion

The plaintiff's appeal is dismissed as it is without merit, and the costs of appeal are fully borne by the losing plaintiff.