National High Court 1994Du5504 ( October 26, 1995)
Since five family members live together and the claimant used one room on the issue apartment, it is difficult to accept the claim proposal. Thus, the disposition that excluded the application of non-taxation and imposed tax is legitimate.
Article 5 of the Income Tax Act [Non-Taxable Income] / Scope of 15 of the Enforcement Decree of the Income Tax Act
I dismiss the appeal.
1. Summary of the original disposition;
The claimant purchased 86.7.2 and transferred OOOO's site 47.2m2m2m2 and 77.75m2m2 of apartment (23.52m2) (hereinafter referred to as "inter-store apartment") to the housing association of the Otel, Gangnam-gu Seoul Special Metropolitan City, the claimant acquired 88.9.2m2(hereinafter referred to as "non-claim apartment") and transferred it to non-claimO. 91.8.27m27.
The disposition agency notified the claimant of the transfer income tax of 26,80,420 won for the year of 91 on January 29, 94 on the ground that his family, such as the claimant's wife and children, did not have resided in the issue apartment from the date of acquisition to the date of transfer, and the claimant does not confirm that he actually resided in the issue apartment.
The claimant appealed against this and filed a request for trial on October 25, 94 through an objection and a request for review on June 11, 94.
2. Opinion of the petitioner and the Commissioner of the National Tax Service;
A. The claimant's assertion
The claimant asserts that since the OOO, the wife, was in office in 74.8.22 to 90.17, and the wife and children were registered in the OOO-gun of Gyeonggi-do, and the children were admitted to the OO-gun school in the location of OO, and the family did not live together with the family, the claimant was confirmed by the OO-O's confirmation document that he had been residing in the OO-type of the O-type of the O-type of the O-type of the O-type, and the O-type of the O-type of the O-type of the O-type of the O-type of the O-type of the O-type of the O-type of the O
B. Summary of opinions of the Commissioner of the National Tax Service
The Commissioner of the National Tax Service shall not be subject to the restriction on the residence period under the proviso of Article 15 (1) of the Enforcement Decree of the Income Tax Act in the case of claimant. However, in the case of claimant's failure to reside for not less than 3 years due to unavoidable reasons under the Ordinance of the Ministry of Finance and Economy pursuant to Article 15 (1) 3 of the Enforcement Decree of the Income Tax Act, this refers to the case where the causes under each subparagraph of Article 6 (4) of the Enforcement Decree of the same Act occur during the period of residence in the house after the acquisition of the house, and it is not possible to apply the same provision to the case where the claimant's family does not reside in the house concerned from the time when the apartment at issue was acquired as the claimant's family from the time of acquisition of the apartment at issue. In addition, in accordance with
3. Hearing and determination
A. Key issue
This case is a key issue to judge whether the claimant's key apartment transfer is subject to non-taxation of one house for one household.
(b) Related statutes;
According to subparagraph 6 (i) of Article 5 of the Income Tax Act, one house for one household as prescribed by the Presidential Decree and its appurtenant land shall not be subject to income tax on the income accruing from a transfer of the land within the area calculated by multiplying the area of the land to which the building is built by the multiple rates as determined by the Presidential Decree by region. According to Article 15 (1) and 3 of the Enforcement Decree of the same Act, the term “one house for one household” in Article 5 (6) (i) of the Act means that one household comprised of one resident and his/her spouse together with his/her family members who live in the same address or same place of residence with the same resident and for not less than three years in Korea: Provided, That under Article 6 (4) (main sentence) and 1 of the Enforcement Rule of the Income Tax Act, the term “in cases where there are inevitable reasons prescribed by the Ordinance of the Ministry of Finance and Economy” means the cases where the head of the competent Si/Gun/Gu or another Si (including the Seoul Special Metropolitan City/Eup/Myeon/Dong/Dong/Dong/) provides the relevant residence certificate for three years or more.
C. Facts and determination
Examining the assertion that the claimant has resided in the issue apartment for not less than three years and transferred it due to inevitable reasons due to the moving of the workplace, which constitutes the non-taxation requirement of one house for one household,
First, the OO-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-
Second, from 82.4.10 to 91.4.7, the claimant worked for the OOC operating bureau of the OOC and worked for the OOC operating bureau from 91.4.8 to 93.30, the claimant is confirmed by a certificate of employment issued by the head of the OO communication network operating bureau, and the applicant's wife has worked for the Gyeonggi-do OO telephone station from 74.8.22 to 90.17, and the applicant's wife has been enrolled for five years in the year of March 2, 94, and the applicant's wife has been residing for the OOOCO as of 22.214.171.124 to 90.17, and the applicant's wife is confirmed by a certified copy of the resident registration and the certificate of employment issued by the head of the OOOO telephone, and the applicant's wife has been confirmed by the head of the OOOOO-gun in Gyeonggi-do.
Third, the claimant is confirmed to have leased the issue apartment to OOO out of the claim from November 10, 89 to July 20, 91, and the OOO out of the claim is confirmed to have resided together with five family members, such as the resident registration certificate and the lease contract.
Fourth, if the claimant actually resides in the issue apartment, the telephone number owned by the claimant can be presented, but the claimant does not present evidence.
In full view of the above facts and relevant Acts and subordinate statutes, the claimant argued that he/she inevitably moved from O to O because he/she had formed one single household in the employee-based apartment unit, and the working department changed from O to O. However, the claimant's family members form a separate living base at OO, and the claimant's family members do not move his/her resident registration from the apartment at issue to October 7, 92 until the date of issuance of a certified copy of resident registration of the 91.8.27, but the applicant did not move his/her house from the apartment at issue to the actual place of residence. The claimant leased the apartment at issue to OO from November 10, 89 to July 20, 23, 200. The non-claim's non-resident's non-taxation and non-taxation of 1,126.96.36.199,75,77, and the claimant's non-taxation of 1,51,000's family members living in the apartment unit.
Therefore, this case's petition is without merit, so it is decided in accordance with the provision of Article 81 and Article 65 (1) 2 of the Framework Act on National Taxes.