거주자가 배우자와 사실상 별거하였더라도 별도 세대로 인정할 수 없음[국승]
Diab01 Schedule 2060 ( October 04, 2011)
Even if a resident actually stays with his spouse, it shall not be recognized as a separate household.
Since the spouse of a resident has no restrictions on the formation of the resident and one household, the fact that the spouse is the spouse shall be deemed to form the resident and one household, and even if there was no speculative purpose or the spouse was actually separated from the spouse, it cannot be deemed to be a separate household.
Article 89 of the Income Tax Act
Article 154 of the Enforcement Decree of Income Tax Act
2011Guhap37444 Revocation of revocation of request for rectification
KimA
Kim Jong-soo
April 12, 2012
May 3, 2012
1. The plaintiff's claim is dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
The defendant's rejection disposition against the plaintiff on March 9, 201 is revoked.
1. Circumstances of dispositions;
A. On August 20, 1983, the Plaintiff acquired OO apartment Nos. 000,000 (hereinafter referred to as “Amart of this case”) under its own name.
B. Under the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter referred to as the "Do Government Act"), the apartment of this case was implemented and the approval for the implementation of the housing reconstruction project was announced on January 5, 2005, and the plaintiff's wife KimB and ASEAN KimB and ASEAN KimCC acquired the joint name (hereinafter referred to as "OO apartment") of Seocho-gu Seoul OOdong 000 O20,000 00 000 (hereinafter referred to as "OO apartment"), and on October 11 of the same year, the plaintiff was selected as the occupant of the reconstruction apartment of this case (hereinafter referred to as "the status selected as above") in accordance with the management and disposal plan of the apartment of this case on the 21st of the same month.
C. On May 8, 2009, the Plaintiff transferred the instant association member’s relocation right, and on May 25, 2010, reported KRW 000 in the transfer value, KRW 000 in the acquisition value, and KRW 000 in the necessary expenses, and KRW 000 in the transfer income tax reverted to 2009.
D. After that, on February 10, 201, the Plaintiff applied for reduction of KRW 000 from the tax amount reported by the Plaintiff pursuant to the “one house non-taxation provision for one household” to the Defendant, but the Defendant rejected this.
E. On March 22, 2011, the Plaintiff filed a petition with the Tax Tribunal for the revocation of the instant disposition on May 31 of the same year, but the petition was dismissed on October 4 of the same year, and filed the instant lawsuit.
2. Whether the disposition in this case is legitimate
A. The plaintiff's assertion
The plaintiff asserts that the income from the transfer of the association member's relocation right of this case for the following reasons, and the income from the transfer of the association member's relocation right of this case is not subject to taxation because it constitutes a transfer of one house by one household under Article 89 (1) 3 of the former Income Tax Act (amended by Act No. 9672 of May 21, 2009) and Article 154 (1) of the former Enforcement Decree of Income Tax Act (amended by Presidential Decree No. 21515 of May 29, 2009
(1) Legal wife KimB and independent household have been living in a different state of divorce and they have been living in a different state of divorce, and OO apartment has been acquired without speculation purposes. In light of the legality of the non-taxation system for one household and the purpose of the clause, the above cases must be recognized as a separate household.
(2) Even if the Plaintiff and the Plaintiff’s wife form the same household, and if the owner of an apartment subject to reconstruction acquires another apartment, he/she shall be a l household holder only after the completion date of the reconstruction apartment. Since the Plaintiff’s wife, which constitutes the same household as the Plaintiff, acquired an O apartment and transferred the instant association member’s relocation right before the reconstruction apartment is completed, and the Plaintiff still constitutes one house holder for one household.
B. Determination
(1) As to the assertion of the above A(1)
In light of the principle of no taxation without law, or the interpretation of tax laws and regulations to prevent the requirements for non-taxation or tax exemption, barring special circumstances, it is not allowed to interpret them as prescribed by the law, and it is also consistent with the principle of tax equity if it is clearly viewed to be the preferential provision among the requirements for reduction and exemption (see, e.g., Supreme Court Decision 2001Du731, Apr. 12, 2002). Even in cases where a couple’s agreement is de facto separate from one household without divorce or judicial divorce, legal marital relationship is still maintained, and Article 154(1) of the former Enforcement Decree of the Income Tax Act provides that “one household composed of one household with the same address or family member with the same family member with the same family member at the same time shall be deemed to be in violation of the principle of no taxation without the intention of the plaintiff’s 1 and 5, and that the plaintiff’s spouse should be deemed to be in violation of the principle of no taxation with the plaintiff’s 1 and 5's spouse's non-resident or 98.
(2) As to the assertion of the above A(2)
If the owner of an apartment subject to reconstruction acquires another apartment, he/she does not have any ground to believe that he/she is a holder of two houses for one household only after the completion date of the reconstruction apartment, and the defendant does not take the disposition in this case on the ground that he/she is a holder of two houses for one household, and the plaintiff's above argument is without merit without further examination.
3. Conclusion
Thus, the plaintiff's claim of this case is dismissed as it is without merit.