Examination transfer 2009-0255 ( December 07, 2009)

No person who has been living in a dormitory shall be deemed to have organized an independent household.

The reason for living in a company dormitory was that the plaintiff's husband and wife's residence was temporarily left for the work situation or convenience, and it cannot be deemed that the independent household was formed for the above period.

The contents of the decision shall be the same as attached.

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposition of KRW 158,95,804 against the Plaintiff on May 13, 2009 shall be revoked.

1. Circumstances of the disposition;

A. On April 1, 2002, the Plaintiff acquired and owned DDR Nos. 346 DDA 101 Dong 2102 (hereinafter “instant house”) from Seongdong-gu Seoul, Seongdong-gu, Seoul, and transferred the instant house to UCC at KRW 520 million on November 26, 2007 (hereinafter “instant transfer”).

B. (1) On December 1, 2006, the Plaintiff’s wife acquired the aforementioned DD 346 DEtab 113 Dong 2001 (hereinafter “DEta”) and held it at the time of the transfer of this case.

(2) On December 5, 2006, Lee Jong-A, a parent of the plaintiff couple, acquired the aforementioned DD 347 DF apartment 107 Dong 1007 Dong 1007 (hereinafter referred to as "house, etc.") and possessed it at the time of the transfer of this case.

C. On January 14, 2008, the Plaintiff: (a) filed a preliminary return of capital gains tax on the Defendant; (b) filed a non-taxation report on the ground that the instant house falls under the temporary two houses under Article 155(1) of the Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 20618, Feb. 22, 2008; hereinafter the same) and is regarded as one house for one household under Article 154(1) of the Enforcement Decree of the Income Tax Act; (c) thus, it is regarded as one house for one household under Article 154(1)3 of the Income Tax Act (amended by Act No. 8825, Dec. 31, 2007; hereinafter

D. On May 13, 2009, the Defendant rendered the instant disposition to the Plaintiff on May 13, 2009, on the ground that, as the Plaintiff’s husband’s wife owned a house outside of the prescribed scope at the time of the instant transfer, the instant house falls under three houses for one household, and thus, the said temporary two houses cannot be applied to the transfer of the instant house. Accordingly, the instant disposition was rendered to determine and notify KRW 158,95,804, which is calculated by applying the tax rate prescribed in Article 104(1)2-3 of the Income Tax Act.

[Ground of recognition] Evidence No. 1-3, Evidence No. 3-1, 2-2, Evidence Nos. 1 and 2, and the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The disposition of this case is unlawful for the following reasons:

(1) The Plaintiff, the wife, transferred the instant house to a third party within one year from November 14, 2006 to August 15, 2007. The Plaintiff resided in the company dormitory of his female from August 16, 2007 to March 2009, while residing in the company dormitory of his female, and resided in the mixed in the company from August 16, 2007 to March 1101 (hereinafter “the instant officetel”) in Guro-gu Seoul Metropolitan Government 3-ro 3-dong 3-dong 102-dong 102-dong 3-dong 3-dong 3-dong 3-dong 3-dong 3-dong 101 (hereinafter “the instant officetel”), and therefore, the Plaintiff’s husband and wife and this household shall be regarded as independent household pursuant to Article 154(2)3 of the Enforcement Decree of the Income Tax Act. Therefore, the instant house constitutes one house subject to non-taxation under Article 89(1)3 of the Income Tax Act.

(2) Even though this case’s housing was transferred in the same household with the Plaintiff’s husband at the time of the transfer of this case’s housing, this case’s housing is considered as one household under Article 155(4) of the Enforcement Decree of the Income Tax Act, since this case’s housing was transferred within 2 years from its mother and the Plaintiff was in the same household with the Plaintiff’s wife at the time of the transfer of this case’s housing. Accordingly, this case’s housing constitutes one house for one household subject to non-taxation under Article 89(1)3 of the Income Tax Act.

(b) Related statutes;

It is as shown in the attached Form.

(c) Fact of recognition;

(1) The Plaintiff was born on June 12, 1951 and the Plaintiff’s wife was the Plaintiff’s wife on October 2, 1951. The Plaintiff’s husband and wife were 56 years of age at the time of the transfer of the instant house.

(2) ThisA was born on April 9, 1982 and was unmarried at the time of the transfer of the instant house.

ThisA was employed on March 21, 2005 by HH Heavy Industries Co., Ltd. (hereinafter referred to as “H Heavy Industries Co., Ltd.”) and continued to serve until the time of the transfer of this case.

(3) According to the wage and salary income withholding receipt, thisA’s total salary in the year 2006 was approximately KRW 33 million, and the total salary in the year 2007 was KRW 43.5 million.

(4) (A) On March 4, 2003, the Plaintiff’s domicile on the Plaintiff’s resident registration was changed to ① 101, 2102, 101, 200, 206, 113, 2001, 3.16, and 4.8 August 18, 2008, by the Seongdong-gu Seoul Metropolitan Government 110,104, 1104, and 633, 2006.

(B) The Plaintiff’s wife’s domicile on March 4, 2003, 101, 2102, the Plaintiff’s domicile on the resident registration, respectively, changed from 113 dong 2001, 206 to 113 dong 2001.

(C) The domicile of thisA was changed from March 4, 2003 to the above DEta 101 Dong 2102, which is the instant house, to April 27, 2005, to the Seoul Yeongdeungpo-gu 165-1 KK apartment 105 Dong 1204 on April 27, 2005, ③ the above DEta 110 Dong Dong 110 503 on March 9, 2006, ④ December 12, 2006, to the above DF apartment 107 Dong 107 Dong 1077.

(5) However, from April 27, 2005 to March 9, 2006, the family members resided in other person from August 23, 2005 to May 30, 2007, the above LLL-165-1 K apartment 105 and 1204, which are the resident registration of thisA, from March 27, 2005 to March 9, 2006. In addition, thisA acquired a house, and only did not have actually resided in it.

(6) According to the application, etc. for the occupancy of a dormitory submitted by the Plaintiff on the objection against the instant disposition, the Plaintiff appears to have lived in the non-party company dormitory located in the Ndong in Seoul Ndong from November 2006 to August 15, 2007. Meanwhile, the application for the occupancy of the dormitory of the non-party company prepared by thisA state that the non-party company's company's company's company's company's company company's company's company's company's company's company's company's company's company's company's company's company'

(7) The instant officetel consists of approximately 22 rooms and living rooms. From May 2007 to March 2009, the instant officetel was the residence of the husband and wife of KimM. around March 2008, KimM was the birth of the Plaintiff’s son and the Plaintiff’s son was married to the Plaintiff. Since around March 2008, KimM was the birth of the Plaintiff’s son and was pregnant.

[Ground of recognition] The items of evidence Nos. 4-3 through 10, 13-15, Gap evidence Nos. 5-3 through 7, Eul evidence Nos. 3 and 6, and the purport of the whole pleadings

D. Determination

(1) As the first note:

(A) According to the provisions of Article 89(1)3 of the Income Tax Act and Article 154(1) and (6) of the Enforcement Decree of the Income Tax Act, one household means a household in which a resident and his/her spouse make a living together with the family members who share the same address or same place of residence. The family refers to a lineal ascendant or descendant (including his/her spouse) and a sibling of the resident and his/her spouse, and the person who temporarily left the original domicile or temporary domicile for attending school, medical treatment of diseases, work or business conditions among his/her household members are included in the family members. However, in order to see a resident's lineal descendant, etc. as an independent household, the income of his/her lineal descendant, etc. should be maintained independently while managing and maintaining the house or land owned by him/her at least the minimum cost of living under Article 2 subparag. 6 of the National Basic Living Security Act, and the resident and his/her lineal descendant, etc. need to be excluded from the tax-exempt policy.

(B) Therefore, we examine whether the AA maintains an independent household separately from the Plaintiff at the time of the instant transfer.

In light of the above facts, this case’s officetel appears to have the ability to maintain independent living with the Plaintiff’s husband and wife at the time of transfer. However, considering the various circumstances revealed in the above facts, i.e., the Plaintiff appears to have existed at the time of transfer from April 2005 to the time of transfer of this case’s resident registration and the actual place of residence, even if this case’s airline was living in the non-party company located in the above NNdong from November 2006 to August 15, 2007, it appears that the non-party company located in the non-party company located in the above NM as of August 1, 2006, it appears that this case’s officetel appears to have been living with the Plaintiff’s husband and wife at work or for convenience, and the Plaintiff could not be deemed to have actually resided in the instant officetel at the time of transfer of this case’s residence separately from the Plaintiff’s previous domicile, and the Plaintiff could not be deemed to have actually resided with the Plaintiff at the time of transfer of this case’s husband and wife.

Therefore, this cannot be said to constitute a separate household with the Plaintiff at the time of the transfer of this case, and as long as the Plaintiff’s wife and EA owned one house at the time of the transfer of this case, the instant house constitutes three houses for one household at the time of its transfer, and cannot be deemed as one house for one household at the time of its transfer. Therefore, the Plaintiff’s above assertion is without merit.

(2) On the second argument

(A) According to Article 155(4) of the Enforcement Decree of the Income Tax Act, where a person having one house and forming one household joins the households in order to care for a lineal ascendant (including his spouse’s lineal ascendant) over 60 years old (in the case of a woman, 55 years old) who possesses one house by living together, and one household comes to own two houses, the first transferred house within two years from the date of joining shall be regarded as one house for one household and the provisions of Article 154(1) of the Enforcement Decree of the Income Tax Act shall be applied.

(B) Therefore, we examine whether this AA, at the time of the transfer of the instant house, could be deemed to combine the Plaintiff’s husband and wife with one another in order to support the Plaintiff’s wife, who is a lineal ascendant at the time of the transfer

The Plaintiff’s wife at the time of the instant transfer house is 56 years of age. However, according to the above, from November 2006 to August 15, 2007, it cannot be deemed that the Plaintiff’s wife’s life in the non-party dormitory located in the NNdong constitutes an independent household for the above period, considering that the number of parents was left at the husband’s residence due to work situation or convenience. This cannot be deemed to have formed an independent household for the above period. This is deemed to have left the Plaintiff’s residence at the Plaintiff’s husband and wife’s residence and returned to the Plaintiff’s husband and wife’s residence after the Plaintiff’s retirement. Moreover, leB did not appear to have been in a situation where the Plaintiff was living together with the Plaintiff at the time of the instant transfer of the instant house, and therefore, it was difficult to conclude that the Plaintiff maintained a separate household between the Plaintiff and the Plaintiff’s wife and the Plaintiff’s living together with the Plaintiff’s wife in order to make up for the Plaintiff’s wife’s wife.

(3) Sub-decisions

Ultimately, the Defendant’s disposition of this case, based on the premise that the instant house constitutes three houses for one household at the time of transfer and does not constitute one house for one household subject to non-taxation under Article 89(1)3 of the Income Tax Act, is lawful.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.