Early High Court Decision 201J 1517 ( October 13, 2011)

It is difficult to deem that they meet the residential requirements for not less than two years.

It is difficult to recognize that the tenant has resided in the transferred apartment for at least two years in light of the fact that he/she had resided overseas during the lease period, although there was a fact that he/she had resided overseas during the lease period, and that he/she has paid management expenses, etc. from time to time after entering the transfer apartment.

2013Gudan1236 Revocation of Disposition of Imposing capital gains tax

Section AAAA

Head of Sungnam Tax Office

May 15, 2013

July 3, 2013

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The Defendant’s disposition of imposing capital gains tax of KRW 000 for the year 2009 against the Plaintiff on December 1, 2010 shall be revoked.

1. Details of the disposition;

A. On July 26, 2004, the Plaintiff filed a return on the tax base of capital gains tax on the ground that the Plaintiff: (a) transferred on July 28, 2009 the instant apartment (hereinafter “instant apartment”) No. 0000,000, Seongbuk-gu, Sungnam-si (hereinafter “instant apartment”); and (b) on May 31, 2010, the Plaintiff filed a return on the tax base of capital gains tax that “income from the transfer of the instant apartment (income from the transfer of one house for one household) constitutes non-taxable capital gains.

B. On December 1, 2010, the Defendant decided and notified the Plaintiff of KRW 000 of the transfer income tax for the year 2009 (hereinafter “instant disposition”) on the ground that “the Plaintiff failed to meet the requirements for residence for more than two years during the retention period of the instant apartment” and “the Plaintiff was exempt from the application of non-taxation for one house for one household.”

C. On April 4, 201, the Plaintiff dissatisfied with the instant disposition, filed an appeal with the Tax Tribunal on April 4, 201, and the Tax Tribunal dismissed the said appeal on October 13, 201.

[Ground of Recognition] Unsured Facts, Gap evidence 1, Eul evidence 1, and Eul evidence 3, and Eul evidence 9

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Although the plaintiff actually resided in the apartment of this case for a total of 353 days from July 26, 2004 to July 14, 2005 and 419 days from September 22, 2006 to November 15, 2007 during the period during which he possessed the apartment of this case, the defendant issued the disposition of this case on a different premise, and the disposition of this case against the plaintiff against the plaintiff is unlawful.

B. Relevant statutes

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

(c) Fact of recognition;

1) Around October 2001, the Plaintiff purchased the apartment in this case and paid the sales price in full on July 26, 2004, and on June 17, 2005, the Plaintiff set the lease deposit amount of 00 won and the lease deposit amount of 00 won from July 14, 2005 to 24 months, and on October 1, 2007, concluded each lease contract with the maximumCC and the lease deposit amount of 000 won and the lease deposit period of 24 months from November 15, 2007, and transferred the apartment in this case to DoD and EE on July 28, 2009.

2) The Plaintiff transferred the instant apartment on May 14, 2004 on the resident registration card, but on March 17, 2010, and the B transferred on July 14, 2005, but on August 20, 2007, and the MaximumCC transferred on November 15, 2007, but transferred on May 24, 2009.

3) OB had been staying abroad from October 27, 2006 to June 19, 207, and from January 20, 2006 to January 23, 2006; from January 20, 2006 to January 3, 2006; from January 30, 2006 to January 30, 2006; from February 18, 2006 to March 4, 2006; from May 18, 2006 to May 25, 200 to 7, 200; and from June 20, 2006 to 7, 20.6, 207; and from June 26, 2006 to 7, 2008; and

4) After the expiration of the above lease term, OB filed an application for provisional attachment and the order of lease registration on the instant apartment with Sung-nam branch of Suwon District Court for the provisional attachment and the order of lease registration as to the instant apartment, and the said court made a provisional attachment and the order of lease registration as the order of lease registration as of August 8, 2007 and as of 2007Kadan50925 and 1168.

[Based on Recognition] The descriptions of Gap evidence 2 through 4, Eul evidence 5, Eul evidence 5, Eul evidence 4, Eul evidence 5, Eul evidence 7, Eul evidence 8, Eul evidence 10, Eul evidence 11-2, and Eul evidence 15, and Eul evidence 15, and the purport of the whole pleadings

D. Determination

1) In full view of the following circumstances, the above facts found that the Plaintiff actually resided in the apartment of this case for 33 days from September 22, 2006 to August 20, 207, and there is no other evidence to support this, and it is difficult to view that the Plaintiff satisfied the residential requirements of 2 years or more for the application of non-taxable housing for one household as provided in the related statutes, and that the Plaintiff satisfies the residential requirements of 2 years or more for the application of non-taxable housing for one household as provided in the relevant statutes.

① On May 14, 2004, the Plaintiff filed the first moving-in report with the instant apartment, and continued to maintain the aforementioned moving-in status during the period in which not only the period in which the Plaintiff actually resided in the instant apartment, but also the period in which the Plaintiff leased all the instant apartment to B and MaximumCC, respectively, and did not reside in the instant apartment.

② It is not easy to understand that OB, a lessee, left the apartment of this case, which is an act of losing both opposing power and preferential right to payment under the Housing Lease Protection Act, on September 22, 2006, during the lease term without any security for the return of the said lease deposit, when he/she was unable to receive the lease deposit from the Plaintiff, a lessor, with his/her family members.

③ Although OB and its family members have been staying abroad for some of the above lease periods, they have been staying in the Republic of Korea for more than two months from time to time by the KimP, the husband of OB during the above lease period, and OB continued to pay the management expenses and urban gas fees for the apartment of this case.

④ The location of the store, most of which the Plaintiff asserted that he actually resided in the apartment of this case during the period from September 22, 2006 to August 20, 207, was located in Songpa-gu Seoul Metropolitan Government, not by Sungnam-si, the neighboring apartment of this case.

⑤ From September 22, 2006 to August 20, 2007, the Plaintiff did not submit objective and specific data to recognize that it actually resided in the instant apartment.

2) Therefore, the Plaintiff’s aforementioned assertion on a different premise is without merit.

3. Conclusion

The plaintiff's claim of this case is dismissed as there is no reasonable ground.