Seocho 2010west 1300 ( October 10, 2011)

Whether separate households have been formed with the transfer at the time of transfer

The plaintiff can not be deemed to constitute a separate household separate from the transfer at the time of the transfer of the house, and the plaintiff is a three house owner at the time of the transfer.

2010Gudan13497 Revocation of Disposition of Imposing capital gains tax

Gangwon ○

○ Head of tax office

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 capital gains tax of KRW 78,486,430 against the Plaintiff on February 1, 2010 is revoked (the “written claim of the modification of the claim and cause of the instant case” appears to be erroneous in writing).

1. Details of the disposition;

A. On December 11, 1997, an apartment house for multi-household 2, 125-11 and 125-11, ○○○○○○○○-dong (hereinafter “instant apartment house”) was registered for the preservation of ownership under the joint name of the Plaintiff and Gangwon-do, the father of the Plaintiff (1/2 shares), and the Plaintiff (However, around November 2005, the use in the public register of the instant house was changed to a house and a neighborhood living facility). The instant housing was sold to salaryB in a voluntary auction procedure, such as the ○○ Seo-gu District Court 2007Ma16829, Sept. 2, 2008, and the Plaintiff did not file a report on the imposition of capital gains tax.

B. Accordingly, on February 1, 2010, the Defendant rendered the instant disposition imposing KRW 78,486,430, which was calculated by applying the heavy tax rate of 60% pursuant to Article 104 (1) 2-3 of the former Income Tax Act (amended by Act No. 9270, Dec. 26, 2008; hereinafter the same) on the ground that the Plaintiff, a member of the same household, at the time of the instant housing transfer, owns 101 and 202 ○○ △△△△△△△△dong, 250-8, △△△△△△△dong, and the Plaintiff is a three-household for one household.

[Reasons for Recognition] Evidence No. 1-1, 2, Evidence No. 3, Evidence No. 1-1, and the purport of the whole pleadings

A. The plaintiff's assertion

(1) The actual owner of the instant housing is Gangwon-do, but the Gangwon-do, forged the documents, etc. related to the registration of ownership in the name of the Plaintiff, thereby making a registration of ownership preservation in the name of the Plaintiff with respect to the first/2 shares of the instant housing. Therefore, since the transfer income of the first/2 shares among the instant housing cannot be deemed to have been actually reverted to the Plaintiff, the instant disposition that the Defendant reported differently, was unlawful as it violates the principle

(2) Even if it is not so, at the time of the transfer of the instant house, the Plaintiff was in the same domicile and resident registration domicile as the Plaintiff at the time of the transfer of the instant house, and in fact, it cannot be deemed as a member of the same household sharing the same livelihood with the Plaintiff, since he was sexually living with the aged at the church located in △△△. In addition, since both the Plaintiff and the KangCC were over 30 years of age at the time of the transfer of the instant house, regardless of whether the address or residence is identical, it shall be deemed that each single household constitutes an independent household pursuant to Article 154(2)1 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 21062, Oct. 7, 2008; hereinafter the same shall apply) regardless of whether the address or residence is identical. Therefore, it is unlawful

(3) In addition, since △△ apartment 101, which is the ownership of Gangwon-A, was registered for the transfer of ownership on the ground of the return of the substitute on March 10, 2007, on the ground that △△ apartment 101 had been registered for the transfer of ownership on February 1, 2010, the above △△ apartment 101 can be deemed to have been transferred to leD on March 10, 207. Therefore, the disposition of this case made by the Defendant applying the heavy taxation provision for the housing owner for one household is unlawful.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

(1) Whether the substance over form principle is against the substance over form principle

In general, the burden of proving the facts of taxation requirement in a lawsuit seeking revocation of the disposition imposing tax shall be borne by the imposing authority. However, if it is revealed that the facts alleged in light of the empirical rule in the course of a specific lawsuit are proved, the other party cannot be readily concluded that the pertinent tax disposition was an unlawful disposition that did not meet the taxation requirement unless it proves the circumstances that the pertinent facts were the subject of application of the empirical rule (see, e.g., Supreme Court Decision 2006Du6604, Feb. 22, 2007). According to the above, it can be presumed that the Plaintiff owned the 1/2 shares of the instant house at the time of the transfer of the instant house. On the contrary, the Plaintiff is the actual owner of the instant house, and the Plaintiff is merely the holder of the 1/2 share ownership of the instant house, and there is no evidence to acknowledge this otherwise. Accordingly, the Plaintiff’s above assertion is without merit.

(2) Whether the Plaintiff and the Gangseo at the time of the transfer of the instant house are the same household member

(A) Facts of recognition

1) The Gangnam A (SE on May 15, 1931) resided in the instant house, which is a resident registration, from October 1, 1982 to December 1, 2008. On December 2, 2008, the above △△ apartment was living in 101, and died on March 201. The Plaintiff’s mother, the Plaintiff’s mother, was also residing in the instant house from October 1, 1982 to December 1, 2008.

2) 원고의 주민등록상 주소지는 ① 1992. 9. 5.부터 2005. 12. 6.까지 이 사건 주택 소재지인 위 ○○동 125-11, ② 2005. 12. 7.부터 2007. 4. 11.까지 ▲▲시 ▲▲동 117-1, ③ 2007. 4. 12.부터 2009. 6. 8.까지 이 사건 주택 소재지인 위 ○○동 125-11로 되어 있다. 다만, 원고는 2003. 7. 20.경부터 2004. 10. 20.경까지 처인 김FF과 함께 ○○ ▽▽구 ▽▽동5가 ▽▽동2차 ☆☆타운 201동 706호에서 거주하였다.

3) 원고의 처인 김FF의 주민등록상 주소지는 ① 2003. 9. 27.부터 2004. 7. 8.까지 위 ☆☆타운 201동 706호, ② 2004. 7. 9.부터 2005. 2. 24.까지 □□시 □□구 □□동 865 □□마을 306동 101호, ③ 2005. 2. 25.부터 2005. 12. 6.까지 이 사건 주택 소재지인 위 ○○동 125-11, ④ 2005. 12. 7.부터 2007. 4. 11.까지 원고의 주소지와 같은 ▲▲시 ▲▲동 117-1, ⑤ 2007. 4. 12.부터 2009. 3. 4.까지 원고의 주소지와 같은 이 사건 주택 소재지인 위 ○○동 125-11로 되어 있다. 또한, 김FF은 2006년부터 이 사건 주택 양도 당시까지 ○○이나 ◇◇ 소재 대학교에서 대학강사를 하였다. 한국방송통신대학측이 발행한 2008년 귀속 거주자의 사업소득 원천징수영수증상 김FF의 주소지는 이 사건 주택 소재지인 ○○ ○○구 ○○동 125-11로 되어 있다.

4) The strongGGG, born between the Plaintiff’s husband and wife, had been living together with KimF and resident registration since its birth. Meanwhile, the Plaintiff’s strong HH, born between the Plaintiff and the Plaintiff’s former wife, at the time of the transfer of the instant house, was living in Baleb Baleee, ○○○○ Bale, as well as her mother at the time of the transfer of the instant house.

5) On September 23, 2004, 101, 2004, ○○ apartment was registered for the preservation of ownership in the name of GangwonA on the ground of the return of the substitute on March 10, 2007, and the registration of ownership transfer was made in the name of leD on the ground of the return of the substitute on March 10, 2007. In addition, the above ○○ apartment was sold to another person during the voluntary auction procedure on September 10, 2008.

6) Meanwhile, from around December 1993 to May 31, 2007, the Plaintiff was registered as a director of the non-party company △△△ Co., Ltd. (hereinafter referred to as the "non-party company"), from November 19, 198 to March 12, 2007, as the representative director of the non-party company. The Plaintiff served as the assistant director of the love church located in △△△△.

[Basis] Evidence Nos. 1 and 2-2, Gap evidence Nos. 4 through 7, 9, 11, 12, 15, 16, 19, Eul evidence No. 4, Eul evidence Nos. 5-1 through 5, Eul evidence Nos. 6-1 through 7, and the purport of the whole pleadings

(B) Determination

According to Article 89 (1) 3 of the former Income Tax Act and Article 154 (1) and (6) of the former Enforcement Decree of the Income Tax Act, one household in one house subject to non-taxation of capital gains tax refers to the household in which the resident and his spouse make a living together with the family members who make their living at the same address or same place of residence. The family refers to the lineal ascendants and descendants (including their spouses) and siblings of the resident and their spouse, and the person who temporarily left the original domicile or temporary domicile for attending school, medical treatment of diseases, or under the circumstances of work or business among the household members are included in the family members. Meanwhile, the non-taxation is to exclude a specific of the taxable objects subject to taxation from the necessity of tax policy, and it is related to the exception and special facts of the taxpayer, so the burden of proof for non-taxation of non-taxation requirements is against

Therefore, it is examined whether the Plaintiff has maintained an independent household separate from the Gangseo at the time of the transfer of the instant house.

In addition, according to the above provisions and Article 154 (2) 1 of the former Enforcement Decree of the Income Tax Act, in order to consider a resident who has no spouse aged 30 or older as an independent household, it is insufficient to recognize that the Plaintiff had maintained an independent living separately from the Gangwon at the time of the transfer of the instant house, and there is no other evidence to support the fact. Rather, according to the above facts, the Plaintiff may be deemed to have been living and living in the instant house together with the Gangwon-do and the Jung-gu, the parent at the time of the transfer of the instant house. Furthermore, according to the above provisions and Article 154 (2) 1 of the former Enforcement Decree of the Income Tax Act, in order to consider a resident who has no spouse aged 30 or older as a separate household, the said resident needs to have a different livelihood from his lineal ascendant at the time of the transfer of the instant house. However, as seen above, it cannot be said that the Plaintiff actually maintained his livelihood with the Plaintiff at the time of the transfer of the instant house.

(3) Whether the above △△ apartment 101 was transferred before the transfer of the instant house

In light of the purport of Gap's evidence Nos. 6 and 21, the plaintiff and leapD 2. around November 2, 2005, if the above claims are not repaid for securing the claim amounting to KRW 90,000,000,000 from Kim J's KimJ's sale and purchase price of 200,000,000, it entered into a promise to return substitute bonds to the effect that the above claims shall be transferred from the market price equivalent to the amount obtained by deducting the secured debt amount of the right to collateral security established on the above real estate from the market price of KRW 101,00,000,000 as payment in lieu of the above claims, 30,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,000).

The payment in kind is a real contract established when another payment is actually made in lieu of the original obligation, and where another payment is a real estate ownership transfer, the existing obligation is extinguished after the completion of the registration of ownership transfer only if the other payment in kind is made. Thus, if there is an agreement between the parties on the registration of ownership transfer, the real estate shall be transferred at a cost and the payment in kind shall be made (see, e.g., Supreme Court Decision 927395, Oct. 12, 1999). According to the above facts of recognition, even if the sales contract was made effective on the date of the completion of the above sales contract, the effect of the extinction of all or part of the obligation due to the payment in kind shall be deemed to have been made on February 1, 2010, which is the date of the registration of ownership transfer, which is the date of the above sales contract being implemented, and therefore, the above △△ apartment apartment 101 was transferred on February 1, 2010, which is the date of the remaining settlement.

(4) Therefore, the Plaintiff could not be deemed to have constituted a separate household from Gangwon-do at the time of the transfer of the instant housing. At the time of the transfer of the instant housing, the Plaintiff could be deemed to have owned the said △△ apartment 101 and 202. Therefore, the Defendant’s disposition that applied the heavy taxation rate by deeming the Plaintiff to be a three-household housing owner at the time of the transfer of the instant housing was lawful.

3. Conclusion

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