Review Transfer 2009-0191 ( November 11, 2009)

Whether it can be viewed as a separate household whose livelihood is different

Residential housing is structured so that two households may independently live in a multi-household, and it is not possible to see that they have been supported by independent income and have been living together with other households, and it falls under the house of one household as a separate household living differently.

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

1. The Defendant’s disposition of imposition of capital gains tax of KRW 121,601,720 against the Plaintiff on February 3, 2009 shall be revoked.

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

The same shall apply to the order.

1. Circumstances of the disposition;

A. On February 13, 1997, the Plaintiff purchased ○○○○○○, 1878-4 △△△ apartment, 1205 and 803 (hereinafter referred to as the “instant apartment”) and completed the registration of ownership transfer on July 24, 1998. The Plaintiff’s head and the Plaintiff’s husband were attached to her, and the deceased KimB (Death on April 6, 2002) was owned by 33-2 and 317 square meters (the inheritance by present division) of 43-2 and 317 square meters on the ground, and newly built 3 multi-household houses for 3 multi-household households (2 households, hereinafter referred to as the “multi-family houses of this case”) on the same 197 and completed the registration of ownership transfer on June 2, 1997, 197, and the Plaintiff transferred the same 20-B apartment houses to 30-1, 2016.

C. The Plaintiff transferred the instant apartment to thisCC and completed the registration of ownership transfer on July 26, 2007.

D. The defendant, on February 3, 2009, excluded the application of the special case of non-taxation for one house by one household on the ground that KimA, which constitutes the same household as the plaintiff as of the date of the transfer of the apartment house in this case, owns the apartment house in this case, and imposed and notified the plaintiff of KRW 121,601,720 for the transfer income tax for the year 207 (hereinafter referred to as "the disposition of this case")", [the grounds for recognition], and without dispute, Gap evidence 1, Gap evidence 3-1, 2, 3-1, 2, 4-1, 2, 4-1, 2, 6-1, 2, 3-6-1, 3, and 6-1,

2. Whether the instant disposition is lawful

A. The parties' assertion

The plaintiff asserts that since the plaintiff and KimA are separate households living differently, the apartment of this case should not be taxed as one house for one household, and the defendant asserts that the plaintiff living as the same household from February 11, 1997, when KimA transferred to the multi-family house of this case, and even if not, the plaintiff's husband KimB was supported by the defendant from April 2002, when KimB died, the apartment of this case constitutes two houses for one household. Thus, the plaintiff asserts that the apartment of this case constitutes two houses for one household.

(b) Related statutes;

It is as shown in the attached Form.

(c) Fact of recognition;

(1) The Plaintiff and the deceased KimB were residing in the Gu’s house on the ground of 33-2 and 317 square meters on the Dog-dong, Chungcheongnam-gu, Ydong, Ydong, Ydong, Ydong, and the Plaintiff and the deceased KimB from February 11, 1997 to February 8, 197 to 88.58 square meters on the first floor, and their families were residing in the 85.41 square meters and 48.79 square meters on the second floor.

(2) The first, second, and third floors of the instant multi-family housing are separately installed in a living room, main room, toilet, and room so that each can lead an independent life, and there are internal stairs connecting the first floor with the second and third floors, and the entrance is on the first floor.

(3) The deceased KimB was gaining income by concurrently running the textile business and the stock farm business before the birth, and KimA from around December 1, 1992, from around December 1, 2002, obtained the wage income and the real estate lease income (43,000,000,000,000,000). However, the plaintiff did not have reported income.

(4) According to the Plaintiff’s account details, the Plaintiff received 36,00,000 won in total from the other children except KimA from around 2002 to around 2007, and received 152,155,551 won in total from others due to the refund of loans, etc., and paid 30,850,000 won in total, and 2,101,360 won in total, including 32,052,720 won in total, and the monthly average expenditure was 47,555 won.

(5) On October 12, 2007, the Plaintiff was hospitalized to the Elderly Welfare Center and was hospitalized in the hospital, due to the cerebral cerebral cerebral cerebral typhism in the hospital.

(6) The Plaintiff disposed of the instant apartment in order to raise medical expenses, medical expenses, and other expenses, while demanding KimA to pay the head of Tong and cash, etc. medical expenses, and thereafter KimA has paid the Plaintiff’s medical expenses, medical expenses, and other expenses.

[Reasons for Recognition] In the absence of dispute, Gap evidence 7, Gap evidence 8-1 through 4, Gap evidence 10-1, 2, 3, Gap evidence 11-1, 2, Gap evidence 12-1 through 8, Gap evidence 14, Gap evidence 18-1 through 4, Gap evidence 18-1, 19-1, 2, witness Kim D, the purport of the whole pleadings

D. Determination

According to Article 89 (1) 3 of the former Income Tax Act (amended by Act No. 9897 of Dec. 31, 2009) and Article 154 (1) and (6) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 21301 of Feb. 4, 2009; hereinafter referred to as the "former Enforcement Decree of the Income Tax Act"), "one household" means a group of members with the same address or same as that of the resident and his/her spouse who make a living together with the family members at the same address or same place of residence. The "family" here refers to the lineal ascendant or descendant and sibling of the resident and his/her spouse, and includes those who temporarily leaves the original address or domicile due to school attendance, medical treatment of diseases, or circumstances of business. In addition, one household does not necessarily require the same household on the resident registration, but should be the same living fund through the existence or absence of a daily life (see Supreme Court Decision 2005Nu3868, May 28, 198).

In light of the following circumstances revealed in the above facts, i.e., ① the structure that allows two households to independently live. ② The Defendant asserted that KimB was living together with the Plaintiff from February 11, 1997, the time of moving into the instant multi-family house. However, at the time, the Plaintiff’s husband, KimB was alive, and there was independent income, so it cannot be deemed that the Plaintiff received a salary from KimB and lived together. ③ In addition, the Defendant asserted that the Plaintiff was living together with the Plaintiff from April 2002, when KimB died, from April 1, 2002, the Defendant did not constitute a separate independent household pursuant to Article 154(2)2 of the former Enforcement Decree of the Income Tax Act even if his spouse died, and that there was no special reason to view that the Plaintiff did not have any changes in the Plaintiff’s residential environment or management of the Plaintiff’s funds after KimB’s death in the form of a non-taxable house, and that there was no reason to view that the Plaintiff was no change in the Plaintiff’s income from the transfer of a house.

3. Conclusion

Thus, the plaintiff's claim of this case is justified and accepted.