(영문) 인천지방법원 2013. 09. 24. 선고 2013구단434 판결

The Defendant’s disposition of imposition of the OOO on September 3, 2012 against the Plaintiff on September 3, 2012 is revoked (the date of the disposition to the Director shall be deemed to be written in writing if it is written on September 5, 2012).

Reasons

1. Details of the disposition;

A. On July 24, 1995, the Plaintiff transferred OO-dong 38-1 O apartment 2 and 1201 (hereinafter “instant apartment”) to OCC, etc. on April 12, 201.

B. On May 18, 201, the Plaintiff reported and paid KRW OO00,000 only for the portion exceeding KRW 900,000,00 as the transfer of the instant apartment as one house by one household, meeting the non-taxation requirements.

C. On September 3, 2012, the Defendant exempted the Plaintiff from the application of non-taxation on one house for one household on the ground that the Plaintiff failed to meet the residential requirements for at least two years during the holding period of the instant apartment, corrected the transfer income tax, and issued a notice of imposition and collection of the transfer income tax OOO in the transfer income tax for the Plaintiff in 2011 (hereinafter “instant disposition”).

[Ground of Recognition] The non-sured facts, Gap 1, 3, and 1 and 2, and the whole purport of the pleading

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) The residence requirement for two years or more should be considered as the unit of one household, so it should not be determined whether only the plaintiff meets the floor, and it should be determined on the basis of the entire residence period of the plaintiff's family, and the above residence requirement is satisfied when the part of the plaintiff's husband and wife and the plaintiff's three children overlap.

(2) In addition, the Plaintiff voluntarily satisfied the requirements of residence for not less than two years.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

(1) Whether the Plaintiff’s family member’s residence requirements and non-taxation are met

(A) Article 89(1)3 of the Income Tax Act provides that "one house for one household prescribed by Presidential Decree and one household (hereinafter referred to as "one household") that consists of a resident and his/her spouse together with the family members living together with the same address or same place of residence, which owns one house in Korea as of the date of transfer, and the period of possession of the relevant house is three years or more (in cases of a house located on June 3, 201, the period of possession of the relevant house is three years or more and the period of residence is two years or more)."

In addition, Article 6 (1) of the Resident Registration Act provides that "the head of a Si/Gun/Gu shall register a person who has his/her domicile or domicile (hereinafter referred to as "resident") in his/her jurisdiction (hereinafter referred to as "resident") in accordance with the provisions of this Act for the purpose of residing for not less than 30 days, and Article 8 provides that "the registration of a resident or the revision or cancellation of the registered matters, or the registration of his/her unknown domicile shall be made in accordance with the report

(B) In light of these provisions, Article 89 of the Income Tax Act is related to the tax obligation of the resident, so for application, the taxpayer is required to be the resident, while the meaning that the household is residing at the same time means that the "all members of the household" are not required to reside in the relevant house, and it is limited to the transferor's residence (see Supreme Court Decision 97Nu7479 delivered on December 26, 1997). The plaintiff's assertion that the resident's residence requirements for two years or more should be determined by adding the resident's residence period to the plaintiff's family, including the plaintiff, is without merit without any need to further examine.

(2) Whether the plaintiff's residing requirements are met

(A) Article 154(3) of the Enforcement Decree of the Income Tax Act provides that "The period of residence under paragraph (1) of the same Article shall be from the date of transfer to the date of transfer on the resident registration card, and as long as the resident is indicated in the resident registration card, the fact of residence shall be presumed (see, e.g., Supreme Court Decision 83Nu395, Oct. 25, 1983). This is merely a provision for the convenience of proof, and the purport that the verification of residence shall only follow the entry on the resident registration card (see, e.g., Supreme Court Decision 86Nu562, Apr. 28, 1987).

In addition, under the Income Tax Act, a resident means a person who has a domicile in the Republic of Korea or has a domicile for not less than one year, and a domicile shall be judged by objective facts of living relationship, such as whether a family living together in Korea and the assets located in Korea are located (see Supreme Court Decision 96Nu2927, Nov. 14, 1997).

(B) According to the statements in Gap 5-1, the plaintiff filed a moving-in report on February 10, 1996 on the apartment in this case under the resident registration card, and filed a moving-in report on April 19, 1996, and filed a moving-in report on September 8, 2006, and filed a moving-in report on August 10, 2009, and lived in the apartment in this case for at least two years for an emergency. However, in light of the following circumstances, each statement in Gap 4, five, and Eul 3-1 (including any number), which can be known by the entire purport of the pleadings, it is difficult to believe that the above presumption was reversed, and each statement in Gap 7-1, 8-1, 14-1, and 2 was reversed, in light of the following circumstances:

① On August 27, 1982, the Plaintiff resumed with KimDD, and on August 13, 1992, the Plaintiff filed a move-in report on the instant apartment on February 10, 1996, and again on April 19, 1996, each of the move-in reports on the instant apartment on September 8, 2006, and on August 10, 2009, the Plaintiff completed each move-in report on OOdong 324-1, and KimD completed each move-in report on April 8, 2008, OOdong 324-1, and Odong 324-1, 307, 2508, 167, 201, 2507, 2507, 1607, 2507, 2507, 201, 2507, 1607, 2507, 201.

② Both the Plaintiff’s husband and wife were accompanied by traveling abroad over 22 occasions from 1997 to 2012, and, in particular, the Plaintiff was traveling abroad over three occasions in 2006 when the Plaintiff filed a report on re-transfer to the instant apartment, three times in 2007, three times in 2007, one time in 2008, and two times in 201 and 2011, and one time in 2012.

③ On July 11, 1996, Hanam, the Plaintiff’s Hah was married with the lowest II, and on August 13, 1992, the above EE apartment was transferred to the instant apartment on February 10, 1996, and on April 11, 2006, JJ apartment No. 924-3, JJ apartment No. 6, 1202, while HahK was transferred to the above EE apartment on August 13, 1992, while OOOOdong No. 640-2, LL apartment No. 712, 193, respectively.

④ Meanwhile, from January 17, 1981, the Plaintiff operated the company of OM, Co., Ltd., 27-64 located in OO-Gu O-dong 7 from O-si, O-si, and Hanam Hah was represented and worked in the above company since 2009, and Hanam Hah was working in the above company since 209, and Hahnam was working in the above company since 1999.

⑤ In light of the above details of the move-in report of the plaintiff couple and sons, and the plaintiff's family members were living in the above EE apartment, and moved their residence to the apartment of this case while purchasing the above EE apartment of this case, but they were married to Hanam Hah and became a new living in the apartment of this case, and the plaintiff married to the EE apartment of this case. However, it seems that the plaintiff was actually living in the apartment of this case from February 10, 1996 to April 19, 196. On the other hand, before the plaintiff completed the move-in report on the apartment of this case, it appears that the children were living in Incheon after leaving the apartment of this case, and it appears that the relationship between the plaintiff and son and the plaintiff's family members seems to have been smooth, and in light of the location and work period of the plaintiff and son's workplace, it is difficult for the plaintiff to live in Incheon during the second move-in report from September 8, 2006 to August 10.

(3) Ultimately, the instant disposition based on the premise that the Plaintiff did not meet the requirements for residence for more than two years is lawful, and the Plaintiff’s assertion is without merit.

3. Conclusion

Then, the plaintiff's claim of this case is dismissed for lack of reason.

참조조문

참조판례

-대법원 1983. 10. 25. 선고 83누395 판결

-대법원 1987. 4. 28. 선고 86누562 판결