비거주자는 1세대1주택 비과세 혜택을 받을 수 없음[국승]
Seocho 209u321 ( November 26, 2009)
No non-resident may benefit from one house for one household;
The husband of the plaintiff is a civilian military employee, the plaintiff is a U.S. nationality, and the remaining family members are not residing in the Republic of Korea, and thus they cannot be entitled to non-taxation benefits for one household because they constitute non-taxation benefits
The contents of the decision shall be the same as attached.
1. The plaintiff's claim is dismissed.
2. The plaintiff shall bear the litigation costs.
The Defendant’s disposition of imposition of capital gains tax of KRW 48,098,450 for the Plaintiff on August 3, 2009 shall be revoked.
1. Circumstances of the disposition;
A. On January 30, 2002, the Plaintiff acquired and owned ○○○○○○○○○○○ ○○○ 728, 728 ○○○ apartment 108, 401 (hereinafter “instant apartment”) and transferred KRW 46,00,000 on May 17, 2006.
B. On August 3, 2009, the Defendant: (a) was a civilian military employee of the United States Armed Forces stipulated in Article 1 of the Agreement under Article 4 of the Mutual Defense Treaty between the Republic of Korea and the United States of America regarding Facilities and Areas and the Status of United States Armed Forces in the Republic of Korea (hereinafter “Korea-U.S. Administrative Agreement”); and (b) thus, deemed the Plaintiff as a non-resident and imposed capital gains tax of KRW 48,098,450 for the Plaintiff for the year
[Ground of recognition] Facts without dispute, Gap evidence 2, Eul evidence 1, the purport of the whole pleadings
2. Whether the disposition is lawful;
A. The plaintiff's principal place and the dispute of the case
(1) The plaintiff's assertion: The plaintiff's assertion is a U.S. national who was living in Korea in 2000 under Korea
(2) The issue of this case is whether the plaintiff is a resident (whether he has a residence in Korea for at least one year) and whether the non-taxation provisions of one house per household apply to non-residents.
B. Relevant statutes
C. Determination
(1) The term “resident” means an individual who has a domicile in the Republic of Korea or has a domicile in the Republic of Korea for at least one year (Article 1(1)1 of the former Income Tax Act); and the term “place where a person has a close living relationship as his/her address even if he/she resides in a place other than his/her domicile for a considerable period of time (Article 2(2) of the former Enforcement Decree of the Income Tax Act). Meanwhile, according to the relevant statutes, whether a person has a domicile in the Republic of Korea shall be determined by comprehensively taking into account the objective facts of living relationship, such as the existence of a family living together in Korea
(2) As to this case, the following facts are considered to be comprehensively taken into account each statement of Nos. 1, 4 and 6, namely, that the plaintiff has the nationality of the United States, that is, the plaintiff does not reside in the Republic of Korea for more than 200 days after departure from 206, that the plaintiff's husband is a civilian military employee of the United States Armed Forces, that is, the non-resident of the non-resident of the non-resident of the non-resident, and the non-resident of the non-resident of the United States Armed Forces under Article 1 of the Korea-U.S. Administrative Agreement, and the non-resident of the non-resident of the non-resident of the non-resident of the non-resident of the non-resident of the non-resident of the non-resident of the non-resident, regardless of the domestic address of the non-resident of the non-resident and his family of the non-resident of the non-resident of the non-resident of the non-resident.
(3) Meanwhile, Article 89(1)3 of the Income Tax Act and Article 154(1) of the Enforcement Decree of the same Act stipulate that “one non-taxable household” refers to a case where a household comprised of a resident and his/her spouse together with a family member living together with the same address or same place of residence, as of the date of transfer, holds one house in the Republic of Korea. According to the foregoing provision, if a household intends to receive non-taxation benefits as one house for one household, the person liable for tax payment
(4) In short, the Plaintiff constitutes a non-resident, and the non-taxation benefits for one household cannot be granted to a non-resident. Therefore, the Plaintiff’s assertion is without merit, and the Defendant’s disposition of this case is lawful.
3. Conclusion
Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.