2. The costs of the lawsuit are assessed against the defendant.

Cheong-gu Office

The same shall apply to the order.

"A. On March 25, 2003, the Plaintiff acquired BB apartment 81 and 803 located in OO-gu O-dong 456 (hereinafter referred to as "the apartment of this case"), but transferred on June 2, 2010 to the Plaintiff on June 10, 201, who met non-taxation requirements, and paid a preliminary return to the Plaintiff on June 10, 2010." (b) The Defendant did not reside in the apartment of this case for two years, and did not transfer it within two years after departure from the Republic of Korea to a foreign country, and thus excluded the application of non-taxation provisions on one house for one household, and rejected the application of long-term possession special deduction rate for general assets to the Plaintiff on September 16, 201, and rejected the Plaintiff's objection to the imposition and collection of capital gains tax on September 20, 201 (hereinafter referred to as "the Plaintiff's objection to taxation and collection of capital gains tax on 2010 O.

Facts that there is no dispute over recognition, entry of Gap's No. 1 (including number in documentary evidence; hereinafter the same shall apply), and the purport of the whole pleadings.

2. The assertion and judgment

A. Summary of the plaintiff's assertion

The Plaintiff’s temporary departure from Korea to a foreign country at the time of transferring the instant apartment, and thus, ought to be deemed to have resided in the instant apartment for at least two years under the Income Tax Act. In addition, the Plaintiff’s departure date is the time of acquiring the long-term stay status, and thus, sold the instant apartment within two years from departure, and thus constitutes one house non-taxation requirement for one household.

(b) Fact of recognition;

(1) After the Plaintiff became an adult, the Plaintiff was registered as a separate resident registration by constituting a household separate from his parent on September 29, 1992.

(2) On February 1, 2001, the Plaintiff became a member of theCC Investment Securities and went to the Hong Kong Branch on January 3, 2005, and went to the leave on January 3, 2005, and stayed in Korea for about 48 days until the time of acquisition of the instant apartment after entry, and stayed in Hong Kong for the remaining period. The Plaintiff returned to the Republic of Korea on January 31, 2005 after retirement, and went to the United States on July 25, 2006, and stayed for a simple period in Korea on a intermittent basis thereafter.

(3) The Plaintiff’s domestic period of stay after acquiring the instant apartment from the time of transfer to the time of transfer is as follows.

(4) On April 17, 2003, the Plaintiff purchased a building located in the O-dong O-dong 598-2 at O-si and operated a real estate rental business.

(5) Meanwhile, on February 2, 2010, the Plaintiff was issued a residence passport in the United States on the grounds of emigration, and thereafter registered on the resident registration card on August 29, 201 as the cancellation of emigration.

Facts that there is no dispute over recognition, Gap's evidence 1 through 3, Eul's evidence 3 and 4, witness's witness's partial testimony, the purport of the whole pleadings.

C. Determination

(1) Whether the Plaintiff is a resident under the Income Tax Act

(A) Under the Income Tax Act, a resident refers to a person who has a domicile or a temporary domicile in the Republic of Korea for at least one year, and an address is determined based on objective facts of living relationship, such as whether a family living together with a family living together in Korea and assets located in Korea (see Supreme Court Decision 96Nu2927, Nov. 14, 1997).

(B) As seen earlier, the following circumstances are as follows: (a) the Plaintiff was employed in the investment securities of the Republic of Korea with Korean nationality and entered Korea as an investigation into Hong Kong branch while working for that Hong Kong branch (However, the period of stay in Korea is less than 10 days; (b) the Plaintiff continued to be registered as a separate household after the Plaintiff became adult and became registered as a resident (from November 27, 2003, a moving-in report was filed on the apartment of this case); (b) the Plaintiff was actually residing in the Aircraft of this case for about one year and seven months before returning to Korea and departing from the United States; (c) all of the Plaintiff’s family members were residing in Korea; and (d) the Plaintiff acquired a real estate rental business share in the building located in the OO-dong O-dong building in the Republic of Korea as well as the Plaintiff’s mother and punishment around June 203, 203.

(2) Whether one house for one household satisfies the requirements for non-taxation

(A) According to Article 154(1) of the Enforcement Decree of the Income Tax Act, the scope of one house for one household which meets the requirements for non-taxation of capital gains tax refers to cases where one household owns one house in the Republic of Korea as of the date of transfer, and where it falls under any of the following subparagraphs, it shall not be subject to restrictions on the period of possession and period of residence. Accordingly, Article 71(1)2(b) (hereinafter referred to as the "paragraph (b)) of the Income Tax Act provides that all members of the household depart from the Republic of Korea due to emigration under the Emigration: Provided, That it is limited to cases where one house is owned as of the date of departure and transfer within two years from the date of departure, and item (c) of the same item (hereinafter referred to as "(c) provides that all members of the household depart from the Republic of Korea for non-taxation of capital gains tax shall be subject to non-taxation of capital gains tax for one year or more. In addition, Article 71(6) of the Enforcement Rule of the Income Tax Act provides that "the date of residence is non-taxable under the Emigration."

As recognized earlier, the Plaintiff alone constituted one household until June 2, 2010, and acquired a U.S. residence passport on February 2, 2010. If so, the date of departure of the Plaintiff is the date of February 2, 2010 on which the Plaintiff acquired a long-term sojourn qualification pursuant to item (b) and Article 71(6) of the Enforcement Rule of the Income Tax Act, and as long as it is evident that the instant instant art was transferred within two years, the Plaintiff satisfies the requirements for non-taxation of one house for one household.

(C) As to this, the Defendant seems to have asserted that the transfer of this case does not fall under item (c) and thus cannot be subject to non-taxation.

The point of time of emigration (acquisition of permanent sovereignty and long-term stay) in the Emigration can be the point of time after the date of actual departure rather than the date of actual departure. In this case, even if two years have not elapsed since the date of actual departure, the case of non-taxation for one household may arise if two years have not elapsed since the date of acquisition of permanent sovereignty, etc. in the application of item (b). However, it seems to be a provision that can not be applied if the seller acquires permanent sovereignty or long-term stay in a foreign country, and it is difficult to promptly dispose of one house owned in the Republic of Korea within two years from the time of actual departure of the house in the situation where the acquisition of permanent sovereignty, long-term stay, etc. is difficult. (c) compared to this, considering that there is a need to dispose of one house owned in the Republic of Korea promptly in the event that it is evident that one house owned in the Republic of Korea for the purpose of entry and work has been resided for more than one year, the scope of item (b) is different from the scope of application of item (c).

Ultimately, as long as the Plaintiff satisfies the requirements of item (b) and satisfies the requirements of non-taxation for one household, it is not necessary to further examine whether the Plaintiff constitutes item (c). Therefore, the Defendant’s above assertion is without merit.

(D) Therefore, since the transfer of the instant apartment meets the requirements of non-taxation for one household, the instant disposition against it is unlawful.

3. Conclusion

Therefore, the plaintiff's claim seeking the cancellation of the disposition of this case is reasonable, and it is so decided as per Disposition by the assent of all participating Justices.