(영문) 서울행정법원 2009.8.18.선고 2009구단3821 판결

A. On November 18, 1985, the Plaintiff acquired ○○○○ apartment ○○○○○○, ○○○ apartment ○○, ○○○, ○○○, ○○ apartment , hereinafter referred to as “instant housing”). On July 7, 2003, the Plaintiff acquired ○○○○, ○○, ○○, ○○, ○○, ○, ○, ○, ○, ○, ○, ○, ○, ○ (hereinafter referred to as “new house”).

B. The plaintiff transferred the instant house on August 27, 2003, and did not report and pay the transfer income tax under the judgment that the transfer of the instant house constitutes a temporary transfer of two houses for one household, but the plaintiff did not report and pay the transfer income tax under the judgment that the transfer of the instant house constitutes a non-taxation object. However, the defendant is living in Indonesia from September 5, 1989 by the plaintiff.

Article 155 (1) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 18127, Nov. 20, 2003; hereinafter the same shall apply) on the special case of non-taxation of capital gains tax on two houses temporarily for one household on the ground that it is not subject to non-taxation of two houses temporarily for one household because it is the owner. On September 1, 2008, the Plaintiff imposed capital gains tax of 147,008,830, including the additional tax on the return and payment unfaithful, for the year 2003 (hereinafter the “instant disposition”).

C. The Plaintiff, who was dissatisfied with the instant disposition, filed a request for examination with the Commissioner of the National Tax Service on October 16, 2008, but was dismissed on December 23, 2008.

[Ground of recognition] Facts without dispute, Gap evidence 1, Gap evidence 2-1, Eul evidence 1-2, Eul evidence 1-1 and 2, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff was staying in Indonesia on September 5, 1989 after having been employed in Indonesia as a relationship with his family members and staying in Indonesia. However, at the time of the transfer of the instant house, all of his family members had been holding in Korea and continued to engage in financial savings, such as pension insurance, etc. in Korea. The Plaintiff transferred 80% or more of the revenues earned from overseas employment to the Republic of Korea and used them as savings or taxes, children’s living expenses, school expenses, etc. However, the Plaintiff did not have any deficit transferred to the Republic of Korea, whose domestic property or deposit interest, etc. were disadvantageous to the Defendant’s employment condition at home, and the period of his employment had been extended by one year every year with his intention to return to Korea, and ○○○○, a non-resident, was deemed to constitute a non-resident-resident’s temporary residence and transfer of the instant house to the Republic of Korea, and thus, the Plaintiff’s transfer of the instant house to ○○ University’s occupation and property.

(b) Related statutes;

As shown in the attached Form.

(1) The Plaintiff acquired the instant house on November 8, 1985, and resided for more than two years until December 8, 1988, and worked for management consulting firms located in Indonesia on September 5, 1989, and left Indonesia with his family members and has been residing in the country until now.

(2) According to the labor contract between the plaintiff and the above management consulting company in Indonesia, if no separate notice is given 60 days before the end of the term of employment, the term of employment shall be automatically extended every one year. Accordingly, the plaintiff has extended the term of employment every one year.

(3) At the time of transfer of the instant house on August 27, 2003, the Plaintiff, together with a new house, owned or retained financial assets as follows with his family members in Korea.

A person shall be appointed.

(4) On October 14, 2001, the Plaintiff’s ○○○○, a member of the Plaintiff, returned to the Republic of Korea on October 14, 2001, and was enrolled at ○○ University from March 2, 2002 to September 5, 2005, and was enrolled at ○○ University. From March 1, 2006 to ○○ University, he was enrolled in ○○ University and was enrolled in ○○ University, and completed a uniforms as public duty personnel until March 30, 209.

(5) As of December 26, 2005, 2006 to January 26, 2006, 2007 to January 17, 2008, 2008, the Plaintiff’s father-child, was staying in the Republic of Korea from December 19, 2008 to January 23, 2009, while thinking that ○○○○, a person who is a father-child of the Plaintiff, would enter a high school at present in Indonesia, and was staying in the art education institute.

(6) In the annual salary received from the above management consulting company (US$ 60,000), the Plaintiff has used most of the money paid for financial assets in Korea except for local living expenses, property tax of new housing, comprehensive real estate tax, interest income tax, resident tax and other taxes and public charges such as the resident tax, and ASEAN’s domestic university school expenses and living expenses.

(7) After having been employed in Indonesia as above, the Plaintiff had been staying in the Republic of Korea continuously for the management, etc. of assets still in the Republic of Korea for a short period of 10 days every year, and had been staying in the Republic of Korea for about 53 days, and without cancelling the Plaintiff’s resident registration, the Plaintiff’s wife resided in Indonesia at the site without cancelling the Plaintiff’s resident registration, and had been staying in the Republic of Korea for about the average of 25 days each year before and after the transfer date of the instant house as follows.

A person shall be appointed.

(8) The Plaintiff extended the employment contract with the local company of Indianeia for his wife and domestic university entrance and for his return to the Republic of Korea on December 31, 2009. On November 1, 2008, the Plaintiff returned the deposit amount of KRW 350,000,000 to the lessee of a new house on November 1, 2008, and had the son ○○ move to reside.

[Grounds for Recognition] Gap evidence 2 to 17 (including numbers), Eul evidence 2 to 6, and the purport of the whole theory

D. Determination

(1) Under the Income Tax Act, the term "resident" refers to a person who has a domicile in Korea or has a domicile in Korea for not less than one year, and in determining whether a person who has a domicile in Korea constitutes "person who has a domicile in Korea", the objective intention of living relationship should be comprehensively determined, such as whether a person has a family living together in Korea, whether a person has a family living in Korea, whether a person has a duty to pay taxes, whether a person has a foreign nationality, or has a permanent residence in a foreign country.

(2) As shown in the facts of recognition, the period of domestic stay in the Republic of Korea for a period of up to 14 years up to the day of transfer of the instant house after having been employed in a high-priced Indonesia as shown in the above facts. However, the period of domestic stay in the Republic of Korea for a period of up to 14 years until the day of transfer of the instant house is less than 10 days each year. However, the Plaintiff, with intent to return home, stayed in the Republic of Korea for an extended period of up to 10 days each year, and stayed in the Republic of Korea for the management of assets in the Republic of Korea. ○○○, who is a child, returned to the Republic of Korea on October 14, 201 and was about 53 days each year.

(2) The Plaintiff was entering the Republic of Korea at the time of the transfer of the instant house, and its family members continued to engage in financial savings, such as pension insurance, in the Republic of Korea. The amount of annual income generated from overseas employment was transferred to the Republic of Korea and used for savings or taxes, children ○○○’s living expenses, school expenses, etc. but it appears that the domestic property or deposit interest was not transferred to the Indonesia, or the acquisition of assets such as local real estate was not low. ③ Although the circumstances after the transfer of the instant house, the Plaintiff continued to serve as public interest service personnel in the Republic of Korea for the purpose of domestic settlement, the Plaintiff continued to reside in the Republic of Korea for a long period of time in Indonesia as well as in the Republic of Korea, and the Plaintiff continued to have his family members live in the Republic of Korea with his wife and the domestic university for the purpose of returning to the Plaintiff with his family members residing in the Republic of Korea for a certain period of time. The Plaintiff continued to have his family members live in the Republic of Korea for ○○ on December 310, 2000.

(3) Therefore, the disposition of this case was unlawful on the premise that the Plaintiff was a nonresident at the time of the transfer of the instant house.

3. Conclusion

Therefore, the plaintiff's claim of this case seeking the revocation of the disposition of this case is with merit, and it is so decided as per Disposition by citing this case.

Judges

Judges OOO -

Site of separate sheet

[Related Acts]

Income Tax Act (amended by Act No. 7006 of December 30, 2003)

Article 1 (Duty to Pay Taxes)

(1) Any individual who falls under any of the following subparagraphs shall pay the income tax on his income under this Act:

shall have no record of such action.

1. An individual who has a domicile in the Republic of Korea or has a domicile in the Republic of Korea for not less than one year (hereinafter referred to as "resident");

2. Any person who is not a resident (hereinafter referred to as "non-resident") and has income from domestic sources;

(4) Classification of the domicile and temporary domicile as referred to in paragraph (1) and the resident and non-resident shall be prescribed by the Presidential Decree. Article 121 (Method of Taxation on Non-resident)

(1) Income tax levied on a nonresident shall be cases where it is assessed by adding up the incomes accruing from domestic sources.

It shall be calculated by classifying the domestic source income of the year into cases of separate taxation.

(2) A nonresident having a domestic business place as prescribed in Article 120 and an income as prescribed in subparagraph 3 of Article 119.

With respect to nonresidents, incomes as prescribed in subparagraphs 1 through 7 and 11 through 13 of Article 119.

No. 119(8) shall be assessed by adding up the incomes withheld under the provisions of paragraph (1) and

For nonresidents with incomes as referred to in subparagraphs 1 through 10, taxation shall be made by the same method as residents.

of this section.

(3) With respect to nonresidents holding no domestic business place as prescribed in Article 120, each subparagraph of Article 119.

The income tax shall be imposed separately for each income (excluding subparagraph 10).

(4) Article 156 (1) as domestic source income of a nonresident having a domestic business place as prescribed in Article 120.

For the income withheld under the provisions of Article 119, separate taxation by income under each subparagraph of Article 119.

of this section.

The Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 18127 of Nov. 20, 2003)

Article 2 (Determination on Domicile and Place of Residence)

(1) The address under Article 1 of the Act shall be the family living together in Korea and the assets located in Korea.

Determination according to the objective facts of the living relationship, such as the existence of such person.

(2) The term "place of abode" in Article 1 of the Act means the place where a person has resided for a long time besides his/her address.

The term "place where a close general living relationship is not formed" means a place where a general living relationship is not formed.

(3) Where an individual who resides in Korea falls under any of the following subparagraphs, he/she shall have an address in Korea:

shall be deemed to have been established.

1. When a person has an occupation which requires him to continually dwell in Korea for 1 year or longer; and

2. A person who has a family member living together in Korea and has continued to be one year in view of his occupation and asset status; and

When deemed to reside in Korea;

(4) Where a person living or working overseas falls under any of the following subparagraphs, he/she shall have no address in Korea:

shall be deemed to have been made.

1. When a person has an occupation which usually requires him to continually dwell abroad for 1 year or longer; and

2. A person with a foreign nationality or permanent residence under the foreign laws, who has obtained such a foreign nationality or permanent residence in Korea.

No family member who has no family member, and has re-entered and mainly resided in Korea in view of his occupation and property.

When not recognized as being;

Article 4 (Calculation of Period of Residence)

(1) Dwelling period in Korea shall be from the day following the date of entry to the date of departure.

(2) If an individual who has his/her residence in Korea enters Korea again, the person's family living together with him/her.

when the purpose of departure is clearly deemed temporary in light of the public notice or location of assets, etc.

The departure period shall also be considered to be the period of domestic residence.

(3) If the period of residence in Korea is one year or more for two taxable periods, the domicile in Korea shall be one year or more.

shall be deemed to have been filed.

Article 154 (Scope of “One House for One Household”)

(1) For the purpose of subparagraph 3 of Article 89 of the Act, the term “one house for one household as prescribed by the Presidential Decree” means the resident and his spouse.

A household comprised of one household together with the family members who live together at the same address or same place of residence (hereinafter referred to as "one year of age").

In case where one house is held in the Republic of Korea as of the date of transfer, the period of holding the relevant house.

The housing site shall be for not less than 3 years (Seoul Special Metropolitan City, Seocheon-si, and Housing Site Development Promotion Act under Article 3 of the Housing Site Development Promotion Act).

In the case of a house located in a new urban area located in the Dong-dong, from among the mountain village located in the Sinsan-si of each area designated and publicly notified as a development district

For the relevant house, not less than 3 years of retention period, and those whose residence period is not less than 2 years during such retention period).

(b) The term “one household” means the case falling under any of the following subparagraphs, in which one household possesses one house in Korea as of the transfer date:

shall not be subject to restrictions on the period of possession and residence, if any.

Article 155 (Special Cases in “One House for One Household”)

(1) One household having one house in the Republic of Korea shall acquire another house before transferring the house.

the date of acquisition of another house in case of temporary acquisition of 2 houses

(z) Where a previous house is transferred within one year (where the house is not transferred within one year, the financial landscape thereof);

Cases falling under the grounds prescribed by Ordinance of the Ministry of Government Administration and Home Affairs (including cases falling under the grounds prescribed by Ordinance of the Ministry) shall be regarded as one house for one household.

Article 154 (1) shall apply. In such cases, part of the previous house and its appurtenant land shall be subject to Article 154 (1).

The remaining house and its remaining house which are purchased by consultation or expropriated under subparagraph 2 (a).

If incidental land is transferred within two years from the date of such transfer or expropriation, the remaining house;

the transfer of such house and its appurtenant land shall be deemed to be included in the transfer or expropriation of the previous house and its appurtenant land.

shall be deemed to have been established.

Korea-Indonesia Tax Agreement

Article 4 (Residents)

1. For the purpose of this Agreement, the term "resident of a Contracting State" means any section in that Contracting State in accordance with the laws of that State.

person who is treated as a resident for tax purposes, but this term shall, however, be the source in that Contracting State.

income accruing from such income, including persons who are obligated to pay taxes in that Contracting State;

v. n.

(2) Where an individual becomes a resident of both Contracting States under the provisions of paragraph (1), his status shall be as follows:

this decision shall be made.

(a)the individual shall be deemed to be a resident of a Contracting State which has a permanent residence that he may use. If that individual has a permanent residence that he may use in the Contracting State, his personal and religious relationships shall be deemed to be a resident of a State more closely closely (the central point of significant understanding).

(b)if it is unable to determine a Contracting State with which it is the central place of interest, or a Contracting State does not have a permanent residence which it may use, that individual shall be deemed to be a resident of the Contracting State in which it has a usual residence;

(c)if that individual has a usual domicile in both Contracting States or does not have a usual action in either Contracting State, the competent authorities of the Contracting State shall resolve the problem by mutual agreement;

(3) Where persons other than individuals are residents of both Contracting States by the provisions of paragraph (1), such persons shall be deemed residents of both Contracting States.

A resident of a Contracting State in which a substantial place of management is located shall be deemed to be the resident of the Contracting State.

참조조문

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