Seoul Administrative Court 2010Gudan13497 ( October 15, 2011)

Seocho 2010west 1300 ( October 10, 2011)

It is difficult to recognize that independent living has been maintained separately from the members of the household who share the same domicile on the resident registration.

It is difficult to recognize that an independent living has been maintained separately from the reference to the same domicile as the resident registration at the time of the transfer of the house, and even if the church had accommodation for a certain period, it falls under the case of leaving the original domicile or temporary domicile temporarily due to the circumstances of service or business

2011Nu10869 Transfer detailed and revocation of disposition

XX

Head of Mapo Tax Office

Seoul Administrative Court Decision 2010Gudan13497 decided February 15, 2011

August 25, 2011

October 20, 2011

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The decision of the first instance court is revoked. On February 1, 2010, the defendant revoked the disposition of imposition of capital gains tax of KRW 78,486,430 against the plaintiff (the "written purport of the amended claim of this case and the application for change of cause" seems to be erroneous in writing).

1. Details of the disposition;

A. On December 11, 1997, the Seoul Western-gu Seoul Western-dong 000-00 multi-household 0 (hereinafter referred to as the “instant house”) was registered for the preservation of ownership under the joint name (1/2 shares each of the Plaintiff’s father and the Plaintiff’s father) on December 11, 1997 (However, on November 2, 2005, the purpose in the public register of the instant house was changed to a house and a neighborhood living facility). The instant house was sold to salaryB in the course of voluntary auction, such as the Seoul Western-gu Seoul Western District Court 2007Ma16829, etc., and the Plaintiff did not report capital gains tax in relation thereto.

B. Accordingly, on February 1, 2010, the Defendant rendered the instant disposition imposing KRW 78,486,430 of the transfer income tax for the year 2008 calculated by applying the heavy tax rate of 60% pursuant to Article 104 (1) 2-3 of the former Income Tax Act (amended by Act No. 9270, Dec. 26, 2008; hereinafter the same) on the ground that the Plaintiff owned OO apartment 00-0 above ground 00 and 000 among the Plaintiff’s household members at the time of transfer of the instant housing, and the Plaintiff constitutes three houses for one household.

[Reasons for Recognition] Evidence No. 1-1, 2, Evidence No. 3, Evidence No. 1-1, and the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

(1) The actual owner of the instant housing is Gangwon-do, but the Gangwon-do, forged the documents, etc. related to the registration of ownership in the name of the Plaintiff, thereby making a registration of ownership preservation in the name of the Plaintiff with respect to the first/2 shares of the instant housing. Therefore, since the transfer income of the first/2 shares among the instant housing cannot be deemed to have been actually reverted to the Plaintiff, the instant disposition that the Defendant reported differently, was unlawful as it violates the principle

(2) Even if not, on September 2008, at the time of the transfer of the instant house, the Plaintiff was in the same domicile with the Gangwon-gu and the resident registration, and in fact, at Nwon conference located in 000-00 in Seo-gu, Seo-gu, Incheon, Seo-gu, Incheon, to receive benefits of KRW 500,000 per month and take charge of care of the know-how while serving as the previous Dogdogdog, and he was in charge of care for the elderly. The Plaintiff’s wife, the Plaintiff, together with his DogdongD, was residing in 00 △△△△-dong 000 Dong, Seoyang-gu, Seoyang-gu, △△-gu, 000, and thus, cannot be deemed as a member of

In addition, the Plaintiff and Gangnam-A shall be deemed to form an independent household pursuant to Article 154 (2) 1 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 21062, Oct. 7, 2008; hereinafter the same shall apply), regardless of whether both the Plaintiff and Kang-A are over 30 years of age at the time of the transfer of the instant house, and their addresses or residences are identical. Therefore, the Defendant’s disposition of this case by deeming the Plaintiff as the same household member is unlawful.

(3) Since the above OE apartment Nos. 101, which is owned by Gangwon-A, was registered for transfer of ownership in the name of MaE on the grounds of the return of the substitute on March 10, 2007, on the ground of the transfer of ownership on February 1, 2010, the above OE Nos. 101 can be deemed to have been transferred to MaE on March 10, 2007. Therefore, the instant disposition that the Defendant applied the heavy taxation provision for one household is unlawful.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

(1) Whether the substance over form principle is against the substance over form principle

In general, the burden of proving the facts of taxation requirement in a lawsuit seeking revocation of disposition imposing tax shall be borne by the imposing authority. However, if it is revealed that the facts of taxation requirement in light of the empirical rule have been presumed in the specific litigation process, the other party cannot be readily concluded that the pertinent tax disposition is an unlawful disposition that fails to meet the taxation requirement, unless it proves that the pertinent facts in question are not eligible for application of the empirical rule (see, e.g., Supreme Court Decision 2006Du6604, Feb. 22, 2007)

According to the facts established above, it can be presumed that the Plaintiff owned 1/2 shares of the instant house at the time of the transfer of the instant house.

Unlike this, the fact that Gangnam is the actual owner of the entire housing of this case, and the plaintiff is only the title holder of the 1/2 share ownership of the housing of this case cannot be recognized only by the statement of evidence Nos. 9, 10, and 25, and there is no other evidence to acknowledge it. Therefore, the plaintiff's above assertion is without merit.

(2) Whether the Plaintiff and the Gangseo at the time of the transfer of the instant house are the same household member

(A) Facts of recognition

1) The Gangnam-A (Swelve on May 15, 1931) resided in the instant house, which is a resident registration, from October 1, 1982 to December 1, 2008. On December 2, 2008, the Plaintiff resided in the said OO apartment 101, and died on March 201. The Plaintiff’s mother, the mother, was also the Plaintiff’s resident registration domicile from October 1, 1982 to December 1, 2008.

2) The Plaintiff’s domicile on the resident registration is as follows: ① from September 5, 1992 to December 6, 2005, the Plaintiff’s domicile is as follows: (i) the above x 000-00, and ② from December 7, 2005 to April 11, 2007, Siriri-si AAdong 000-0; and (iii) from April 12, 2007 to June 8, 2009, the above x 000-00, which is the residential location of the instant house; (iv) the Plaintiff resided with his wife from July 20, 2003 to October 20, 2004.

3) The plaintiff's wife's domicile on the resident registration of the YY from September 27, 2003 to July 8, 2004, ① the above YY 00-dong 000, ② from July 9, 2004 to February 24, 2005, the 865 △△△△ 000-dong 865 △△ 0000, ③ from February 25, 2005 to December 6, 2005, the above sudong-dong 00-dong 000-00, and ④ from December 7, 2005 to April 11, 2007, the plaintiff's residence at the same time as the plaintiff's domicile at the city A0-dong 00-dong 5, 2007 to April 24, 2007.

In addition, from 2006 to the time of the transfer of the instant house, KimCC was a university lecturer at the university located in Seoul or Incheon, and on the resident’s business income withholding receipt issued by the △△△△ University in 2008, the domicile of KimCC was at x00-00, Seodaemun-gu Seoul, Seoul, where the instant house is located (see evidence 19). In addition, in 2009, the KimCC reported the family deduction and senior mutual aid to the Gangseo, which is the parent at the time of the year-end settlement of wage and salary income (see evidence 6-7).

4) The DaDD, born between the Plaintiff’s husband and wife, had been living together with the KimCC and the resident registration since the birth. Meanwhile, the Dollef of the Plaintiff, born between the Plaintiff and the Plaintiff’s former wife, was residing in the Eunpyeong-gu Seoul Eastdong at the time of the transfer of the instant house, along with her mother and her mother at the time of the transfer of the instant house.

5) On September 23, 2004, the above O apartment 101 was registered for the preservation of admission in the name of Gangwon on September 23, 2004, and the registration of transfer of ownership was completed on February 1, 2010 on the ground of the return of large goods on March 10, 2007. In addition, the above OO apartment 202 was sold to another person in the course of voluntary auction on September 10, 2008.

6) Meanwhile, from December 1993 to May 31, 2007, the Plaintiff was registered as a director of the non-party OO Co., Ltd. (hereinafter referred to as "non-party Co., Ltd.") for the purpose of housing construction business, etc. as the representative director of the non-party company from November 1998 to March 12, 2007. The Plaintiff served as the assistant director of NN's church located in Incheon after March 2, 2008.

[Ground of Recognition] Facts without dispute, Gap evidence 1 and 2, Gap evidence 4 through 7, Gap evidence 9, 11, 12, 15, 16, 19, Eul evidence 4, Eul evidence 5-1 through 5, Eul evidence 6-1 through 7, and the purport of the whole arguments and arguments

(B) Determination

According to Article 89 (1) 3 of the former Income Tax Act and Article 154 (1) and (6) of the former Enforcement Decree of the Income Tax Act, one household refers to the household in which the resident and his spouse make a living together with the family members who make a living at the same address or same place of residence. The family refers to the lineal ascendant and descendant (including his spouse) and sibling of the resident and his spouse, and the person who temporarily left the original address or place of residence among the household members is included in the family members.

On the other hand, non-taxation generally excludes specific objects of taxation from the necessity of tax policy, which is the exception and special facts of the taxpayer, so the burden of proof for non-taxation requirement is the taxpayer who asserts the cause of non-taxation.

Therefore, it is insufficient to acknowledge that the Plaintiff had maintained an independent household separately from the Gangwon-do at the time of the transfer of the instant house, solely based on the following: (a) evidence Nos. 1, 2-1, 3 through 20; (b) evidence Nos. 22-1 through 5; (c) evidence Nos. 24, 25; and (d) evidence Nos. 23; and (c) evidence Nos. 24, 23; and testimony of ChoK for the witness of the trial at the time of the transfer of the instant house, and there is no other evidence to acknowledge otherwise.

Rather, according to the above facts, the Plaintiff, at the time of the transfer of the instant house, could be deemed to have resided and lived together in the instant house together with the Gangwon-A and Jeong Furg, his parent KimCC, his wife, and Dokdong-do, his father.

Furthermore, according to the plaintiff's assertion, even if the plaintiff had been accommodated in N's N's church for a certain period, it can be viewed as a case of "temporary leaving the original address or residence for working or business under the circumstances of work or business" as stipulated in Article 154 (6) of the former Enforcement Decree of the Income Tax Act, and it seems that the plaintiff at the time of the transfer of the house of this case and the Gangwon-A

Furthermore, according to the above provisions and Article 154 (2) 1 of the former Enforcement Decree of the Income Tax Act, in order to see a resident who has no spouse over 30 years of age as an independent household, his/her actual livelihood with his/her lineal ascendant, etc., the resident is required to have a different living. However, it is insufficient to recognize that the Plaintiff and the Gangwon-do in fact had a different living. There is no other evidence to support this. Rather, as seen earlier, it is possible for the Plaintiff at the time of the transfer of the instant house and the Gangwon-do in fact to share the same livelihood with the Plaintiff at the time of the transfer of the instant house. Thus, it cannot be said that the Plaintiff and the Gangwon-do in the circumstance that the Plaintiff were over 30 years of age at the time of the transfer of the instant house cannot be said to have changed from the household of Gangwon-do.

Therefore, the plaintiff's above assertion is without merit.

(3) Whether the above OO apartment No. 000 was transferred before the transfer of the instant house

In light of the purport of Gap evidence Nos. 6 and 21, Gangnam and YE, around November 2, 2005, concluded a promise to return substitute 10,000 won to the effect that if the above claim is not repaid for securing the claim amounting to KRW 90,000,000,000, from the market value of the above claim, the above OE apartment 101, which is owned by Gangnam, shall be transferred to the amount equivalent to the amount obtained by deducting the secured debt amount of the right to collateral security established on the above real estate from the market value of KRW 10,00,00,000,000, 10,000,000, 20,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,000.

The payment in lieu of the original obligation is a real contract established at the time of the actual performance of another payment in lieu of the original obligation, and where the other payment in lieu of the original obligation is a real estate ownership transfer, the existing obligation is extinguished after the completion of the registration of ownership transfer only if the other payment in lieu of the original obligation is completed. Thus, if there was an agreement between the parties on the registration of ownership transfer, the real estate shall be transferred at a cost and the payment in lieu of the above fact (see, e.g., Supreme Court Decision 99Du7395, Oct. 12, 199). According to the above fact-finding apartment 101, even if the sales contract was concluded at the date of the completion of the above sales contract, the effect of the whole or part of the obligation due to the payment in lieu of the original obligation shall be deemed to have been made on February 1, 2010, which is the date of the above registration of ownership transfer, and therefore, the above OO apartment 101 was transferred on February 1, 2010.

(4) The theory of lawsuit

Therefore, the Plaintiff could not be deemed to have constituted a separate household separate from the Gangwon-do at the time of the transfer of the instant house, and the Gangwon-do at the time of the transfer of the instant house owned the above O apartment 101 and 202. Thus, the Defendant’s disposition that applied the heavy taxation rate by deeming the Plaintiff as a three-household housing owner at the time of the transfer of the instant house is lawful.

3. Conclusion

Therefore, the plaintiff's claim shall be dismissed as it is without merit, and the judgment of the court of first instance shall be just and it shall be dismissed as it is so decided as per Disposition.