Seoul Administrative Court 201Gudan28663, 2012.

National Tax Service Review and Transfer 2011-0168 (Law No. 26, 2011)

Even if all members of the household do not reside together, they can be deemed to meet the residential requirements for one household.

(As with the judgment of the court of first instance), the spouse of the resident alone constitutes a resident and a household, and it is not necessary to establish a new family, and it does not necessarily require all the members of the household to reside in the relevant house, so it is reasonable to deem that the spouse of the resident meets the requirements for the residence of one household even if he/she did not reside in the house with his/her spouse or other members of the household.

2012Nu17799 Revocation of imposition of capital gains tax

Park XX

The Director of the Pacific District Office

Seoul Administrative Court Decision 2011Gudan28663 decided May 23, 2012

October 30, 2012

November 30, 2012

1. The defendant's appeal is dismissed.

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

1. Purport of claim

The Defendant’s disposition of imposition of capital gains tax of KRW 000 against the Plaintiff on January 10, 201 is revoked.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Quotation of judgment of the first instance;

The court's reasoning concerning this case is the same as the reasoning of the judgment of the court of first instance, except for dismissal or addition as stated in the following 2.2. Thus, this court's reasoning is cited in accordance with Article 8 (2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

2. Any notification or addition;

In addition, the part of the fourth and fourth (general omitted) of the decision of the court of first instance is as follows.

(In the case of houses located in the area designated and publicly notified as a prearranged area for housing site development pursuant to the Article 3 of the Housing Site Development Promotion Act, the period of possession of the relevant house for not less than three years and the period of residence for not less than two years during the period of possession).

In addition, the part of the 5th judgment of the court of first instance in the 6th sentence is that the ‘temporary withdrawal from the country' includes ‘temporary withdrawal from the country'.

In addition, the following shall be added between the 6th and 5th of the first instance judgment.

The main text of Article 154(1) of the Enforcement Decree of the Income Tax Act provides that, in principle, where one household comprised of a resident and his spouse and a family member living together with the resident owns one house in Korea for three or more years as of the date of transfer, capital gains tax shall not be levied on such household. As seen earlier, in the case of a house located in the Seoul Special Metropolitan City, the Seoul Special Metropolitan City, the Si, and a specific urban area as well as for two or more years during the period of possession of the above three years, and in the case of the proviso, it does not be subject to restrictions on the period of possession and the period of residence. In the case of a house that does not fall under a house in the area where the requirements of residence are added pursuant to the above main sentence, as in the case of Hanam-si where the instant house is located, the capital gains tax shall not be levied only if the requirements of residence are met only for three years according to the original main sentence, but rather, the scope of the resident, as defined in subparagraph 1 of the proviso, is added more strict non-taxation requirements than in the main sentence and proviso.

3. Conclusion

If so, the plaintiff's claim seeking the cancellation of the disposition of this case is justified, and the judgment of the court of first instance is just, and the defendant's appeal is dismissed. It is so decided as per Disposition.