Suwon District Court 2013Gudan2444 ( November 06, 2013)

2013 Heavy092 (21 March 2013)

It is difficult to view that children have resided independently from the Plaintiff as the independent living fund, and thus, they do not meet the requirements for non-taxation for one household.

The existence of an individual income or property shall function as important data in determining whether a separate household exists, but it shall not be deemed as a separate household as a matter of course because it has an individual income or property, and whether a separate household exists shall be determined in accordance with its actual form of life.

Article 89 of the Income Tax Act

Seoul High Court 2013Nu51031 Revocation of Disposition of Imposing capital gains tax

O

Head of the tax office

Suwon District Court Decision 2013Gudan2444 Decided November 6, 2013

August 29, 2014

September 26, 2014

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance shall be revoked. The defendant's disposition of imposition of capital gains tax belonging to the year 2010 against the plaintiff on October 1, 2012 shall be revoked.

1. Quotation of the reasons for the judgment of the first instance;

This judgment is based on the reasoning of the judgment of the court of first instance, except for dismissal or addition of the following matters, and thus, it is based on Article 8(2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act.

(1) On the 3rd side, the following shall be added:

(2) Since the head of the Gu and the head of the Gu and the head B were independent of their own income and assets as follows, the head of the Gu and the head of the Gu are not one household living together with the Plaintiff. Nevertheless, the Defendant deemed that the head of the Gu and the head of the Gu and the Plaintiff constituted one household together with the Plaintiff, and accordingly, disposed of the instant disposition (including the assertion that even if the head of the Gu and the headB were living together with the Plaintiff in the instant 1 apartment house, they cannot be viewed as the same household as the Plaintiff because they were not living together with the Plaintiff).

In the case of the head of the Gu, ① earned income from the company XX (hereinafter referred to as the “ XX”), ② dividend income from the shares issued in XX, ③ interest and dividend income from the financial assets traded in the FF bank, ④ financial assets traded in the GG bank, etc., were maintained independently from the Plaintiff.

In the case of the headB, ① in the case of the headB, ① earned income from the YB, Co., Ltd. (the trade name before April 1, 2013 is OOOO, hereinafter “YYP”), ② dividend income from the shares issued, ③ interest and dividend income on the financial assets traded in the FF bank, ④ interest and dividend income on the financial assets traded in the GG bank, ④ financial assets traded in the GG bank, ⑤ expropriation compensation for 1/4 square meters of 1/4 square meters of 1/4 square meters of OO-O(b), O-O(b), 534 square meters of O-O(b) in Seoul, U.S., O-O-O(b), 3,611 square meters of 1/4 square meters of 1/4 shares, were maintained independently from the Plaintiff.

(2) "Class 8 (2)" shall be raised to Category 3 (3).

(3) The 3rd page 9 (3) shall be changed to "4)".

④ On No. 4, No. 20 of the Plaintiff’s First Claim, “1) Plaintiff’s First Claim

- - "......"

(5) On the 6th page, the following shall be added:

“2) As to the second argument by the Plaintiff

B) Facts of recognition

① The Plaintiff’s shareholder as of September 30, 2010, as of September 30, 2010, engaged in the retail business of food additives, is the Plaintiff (OO, OO, OO, O.O.O. per share), tea (O.O. per share of the Plaintiff’s wife number, O.O., O.O. per share), head AA (O., shares number of shares, O.O., shares O.O.), head BB (number of shares, O.O., shares O., shares O.), headCC (O., shares O., shares O.), and headCC (O.A. on September 27, 2005). Over AA, headB, and headCC acquired shares from the Plaintiff’s wife South Korea on September 27, 2005.

(2) Wage and salary income of the headA and the head BB: The wage and salary income of the headA in 2010, which is confirmed by the National Tax Service’s income data, from O, O, O, O, or H Arts High Schools, from 2010, is from O, OO, O, or O, or O, or O, or O, or O, or O, or O, or O, or O, in 2011. The wage and salary income of the head BB, which is confirmed by the National Tax Service’s income data, from O, O, O,O, orO, from O, O, or XX, is from O, O, O, orO, or from Y, from x, O, O, or O from YO, or from YO.

③ The dividend income from shares of the head of the Gu and the head of the Gu: The head of the Gu received O, O, O, O, O, O, 201 O, O, 201 as dividend income from shares issued in XX. The head of the Gu and the head of the Gu received O, O, O, O, 201 as dividend income from shares issued in XX. The head of the Gu and the head of the Gu received O, O, O, 201.

(4) In relation to interest and dividend income on financial assets traded in F banks by the head of overA and BB: The head of overA shall receive interest and dividend income on financial assets in F banks in 203 O, O, O,O,O, 204, O, O,O, 2005,O,O,O, 2006,O,O, 2007,O,O208, 2000, 2000, 2000, 2000, 2000, 2000, 2000, 2000, 200, 2000, 200, 2000, 200, 2000, 200, 2000, 200, 2000, 200, 2000, 200, 2000, 2000, 200

⑤ As of December 31, 2010, the headA and the headB have held the financial assets of the FOOOOOOOOOOOOOOOOOOOO of the FO bank and the headB: The headA holds the financial assets of the FOOO,OOO, and the head of the OO (the amount of loans is deposited in the OO capital securities, OO-O-O stocks mixingOOOOO, OO-OOO, OO-OOO, or the OO-O trust). As of December 31, 2010, the headB holds the financial assets of the OO, OO-O, and the head of the OO-O (the amount of loans is deposited in the OO core contracts, O-O-O,O-O-O,O-O-O, the deposit in the O-O trust, O-O-O, and the O-O-O trust.

6) The head of the Gu, a person who majored in the mountain of O.O.B. on 1982, has been engaged in the lecture of H Arts High School in 2009 and the instruction for regular performance of the OOOOOO school in 2010, and is engaged in the same kind of work thereafter. The head of the Gu, during the U.S. sojourn period of the United States of America in the United States of America, the head of the Gu, the head of the Gu, and the head of the Gu, transferred U.S.O.O. and the head of the Gu to the head of the Gu on May 201.

(7) A YB was enrolled in YB from March 201 with O.O., 1985, and was enrolled in the YB training center at that YB.

Facts having no dispute over recognition, Gap evidence 2-1, 12 through 14, 3-1, 11-1 through 2, 3, 4, 15-2, 3, 16-3, 4, 20-8 through 13, 21-4 through 7, Eul evidence 11-3, 12, 14, 15, and the purport of the whole pleadings.

B) Determination

The term "family members living together" under Article 154 (1) of the Enforcement Decree of the Income Tax Act refers to a family member living together in reality. It does not necessarily require that a family member share in the same household on the resident registration certificate, but means a unit of living in the same daily life with wired and wireless common at the time of daily life (see, e.g., Supreme Court Decision 88Nu3826, May 23, 1989).

In light of the above legal principles, in full view of the following circumstances: (a) the evidence presented by the Plaintiff alone is insufficient to recognize that the headA and the headB had lived with their own independent living fund separate from the Plaintiff; and (b) there is no other evidence to acknowledge this.

① In light of the fact that most of the career and activity details of the Plaintiff’s 100% shares are known to the Plaintiff’s representative director. In the case of the Pacific, it is difficult to deem that the Plaintiff actually worked in XX in light of the fact that the Defendant used a credit card (O card) in the vicinity of the Seoul OOO of Seoul Metropolitan Government for the period during which the Plaintiff worked in XX. In the case of the chiB, it is difficult to deem that the Defendant actually worked in XX. In the case of the YB, it is difficult to deem that there was an actual work after being employed in the YOd from January 3, 2011 to May 31, 2011, between the Plaintiff’s YOd from January 3, 2011 to May 31, 2011.

② In the event of exclusion from earned income received from XX, the income from 2010 to 2011 is merely an OO orOO won that was paid as tuition fees by Hart High School.

In the case of the headB, income from 2010 to 2011 is limited to earned income from OOO, OO, OOO, and YP from earned income from YO, and earned income from YP World from YO, POO, and YB is the income accrued after the date of the transfer of the instant apartment. Therefore, it is difficult to view that PO and YB were independent of the Plaintiff at the time of the transfer of the instant apartment as such earned income.

③ The Plaintiff asserted that the headA and the headB had formed the transactional financial assets of XX issued stocks or FB based on the property donated or donated within the scope of tax exemption (the record of pleadings, July 18, 2014). However, evidence on the process of the formation of the gift and property is not submitted. Rather, on September 27, 2005, when the headA and the headB acquired the shares issued XX, the headB was 23 years of age and 19 years of age, and the headB was 19 years of age. In light of the type and amount of the above financial assets, the Plaintiff and the headB did not appear to have invested in the Plaintiff or the Plaintiff’s financial assets for the purpose of increasing their assets. Considering the aforementioned circumstances revealed in the instant argument, it is difficult to view that the headA and the head BB were either the loan and the dividend income and the financial assets issued to the Plaintiff and the head BB bank, etc. based on the name of the Plaintiff and the head BB bank and the beneficiary’s financial assets.

④ There is no data from the Plaintiff’s wife, during the U.S. stay in the U.S., the Plaintiff’s wife, around March 201, was transferred to the head of the U.S.O.O., around May 201, and there was no data from the fact that the source of such funds is a living fund managed by the head of the U.S...

5. In addition, most of the financial assets in the name of the AA and the headB are investment products for asset increase, which are suitable for the use of the living fund as the source of use of the living fund.

(6) In the case of partial compensation for expropriation of real estate donated from Kim XX, it appears that the headB would have been deposited into the financial assets of the headB, there is no submission of data that the headB independently managed the compensation for expropriation, and real estate remaining without expropriation is not the asset generated from profit, and thus, it cannot be the basis for independent livelihood maintenance.

⑤ On the second argument of the plaintiff, the second argument of the second argument of the plaintiff in the 6th column "(2)" is examined as "the third argument of the plaintiff."

6) On the 6th page 12, "as to the third argument of the plaintiff," "4) as to the fourth argument of the plaintiff."

2. Conclusion

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