early 2014 Middle 2252 (No. 11, 2014)

1. A household fails to meet the requirements for non-taxation;

Where one household comes to own two houses as a result of the combination of households in order to care for a lineal ascendant (including a lineal ascendant of his/her spouse) by living together, the house first transferred within five years from the combining date shall be deemed to be one house for one household, and Article 154 (1) shall be applicable thereto.

Scope of one house for one household under Article 154 of the Enforcement Decree of the former Income Tax Act

2014 old-gu 1755 Revocation of Disposition of Imposing Transfer Tax

○ ○

○ Head of tax office

October 13, 2015

May 26, 2015

1. The plaintiff (appointed)'s claim is dismissed.

2. The costs of lawsuit shall be borne by the plaintiff (appointed party).

The imposition of capital gains tax of KRW 56,146,760 on December 9, 2013, which was made by the defendant of the Gu office against the deceased Lee-○ on December 9, 2013, shall be revoked.

1. Details of the disposition;

A. On December 31, 1979, the deceased ○○○ (hereinafter referred to as “the deceased”) acquired and owned each site and each house listed in the annexed real estate list (hereinafter referred to as “the instant real estate”) and transferred the instant real estate to the Korea Land and Housing Corporation on August 3, 2010, but did not make a preliminary return on the transfer income of the instant real estate.

B. Meanwhile, on August 22, 2003, the Plaintiff (Appointed Party; hereinafter referred to as the “Plaintiff”) acquired and possessed the building on ○○○-○○○○○○-dong, ○○○○ on the part of the Deceased on August 22, 2003, and completed the move-in report as the instant real estate on June 18, 2004, the Deceased’s householder as the head of the household. As of the date of the transfer, the Plaintiff completed the move-in report as the instant real estate as the date of the transfer, and the Plaintiff owned the said building under its name, and thus, the transfer of the instant real estate was deemed to fall under the transfer of the two houses by one household, and thus, on December 9, 2013, the Plaintiff took the transfer value of the instant real estate as KRW 208,818,409, and the acquisition value as KRW 26,370,079, and imposed additional tax on KRW 566,760 (hereinafter referred to as “instant”).

D. On April 15, 2014, the Deceased filed an appeal with the Tax Tribunal on the instant disposition, which was dismissed on July 11, 2014.

E. On November 25, 2014, during which the instant lawsuit was pending, ○○ died on November 25, 2014, and on October 12, 2015, the instant lawsuit was taken over by the designated parties, Kim○ and their children, the deceased’s spouse, the Plaintiff and the designated parties, Lee○, Lee○, and Lee○○.

[Ground of recognition] Facts without dispute, Gap 1 to 8, Eul 1 to 3 (including virtual numbers), the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The Plaintiff completed a move-in report on resident registration as the instant real estate in which the deceased was the head of household due to business failure and school attendance problems of the deceased, but did not reside in the instant real estate by the obligees’ continuous intimidation and demand. Around 2006, the deceased was designated as an urban development project area including the instant real estate, and the deceased transferred the instant real estate to ○○○○○○○○ Construction regardless of his will. In light of this, the Plaintiff’s acquisition and possession of the instant real estate and transfer it to the deceased to the Plaintiff○○○○○○○○ Construction regardless of his intention is deemed to meet the requirements for exemption from

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Under the principle of no taxation without law, the interpretation of tax laws and regulations shall be interpreted as the legal text, barring any special circumstances, and shall not be extensively interpreted or analogically interpreted without reasonable grounds. In particular, it accords with the principle of equity in taxation to strictly interpret that the provision of tax reduction and exemption is clearly preferential in the provision of tax reduction and exemption (see Supreme Court Decision 2008Du11372, Aug. 20, 200) and the deceased’s livelihood (see Supreme Court Decision 2008Du11372, Aug. 20, 200).

According to Article 154 (1) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 22811, Mar. 31, 2011; hereinafter referred to as the "Enforcement Decree of the Act"), one household refers to a group in which a resident and his/her spouse together with the family members who share the same livelihood at the same address or same place of residence. It means a group in which a resident and his/her spouse share the same livelihood in this context means a group of members who share the same livelihood with a family member

With respect to the instant case, it is insufficient to recognize that the Plaintiff and the Deceased have formed an independent household with a different living as of the date of transfer only with the statement of the health team and the statement of Gap 9, and there is no other evidence to acknowledge it.

3) Whether the transfer constitutes a transfer within five years after the composition of a household for the amount of living together.

Article 89 (1) 3 of the former Income Tax Act (amended by Act No. 10580, Apr. 12, 201) provides that, in principle, one household shall benefit only if one household owns one house at the time of transfer of the house. However, Article 155 (1) (1) of the Enforcement Decree of the Income Tax Act provides that (2) in the case of two houses due to inheritance, two houses, including (3) in the case of two houses due to a lineal ascendant living together, care, marriage, etc., (4) in the case of two houses, including a designated cultural property, (5) in the case of two houses, including an agricultural or fishing village house, the exception shall be deemed as one house for one household, and (4) in the case of two houses, including a designated cultural property, the transfer income tax shall be imposed on the person who owns one house within the country and constitutes one household temporarily in the case of a house, who owns one house for the purpose of transferring one house within 60 years from the date of temporary living together.

As seen earlier, the Plaintiff owned No. 201 of the above building as the deceased’s children, and completed the move-in report as the real estate in this case’s possession on June 18, 2004 by the deceased’s head of household on June 18, 2004. The deceased transferred the instant real estate to ○○○○○○○○○ Corporation on August 3, 2010 after five years from the date of the move-in report. As such, the instant real estate does not constitute “the house first transferred within five years from the date of combination” under Article 155(4) of the Enforcement Decree of the Act.

4) Sub-committee

Therefore, the Defendant’s disposition that deemed that the deceased transferred the instant real estate did not meet the non-taxation requirements for the transfer income tax of one household is lawful.

3. Conclusion

If so, the plaintiff's claim is without merit and it is so decided as per Disposition.