Criteria for determining whether a non-resident has one house for one household;

Even if a resident has two houses in Korea, if he/she emigrates to a foreign country and transfers a house in Korea after becoming a nonresident, he/she shall be exempted from capital gains tax regardless of the retention period, if he/she owns one house in Korea as of the date of transfer

Article 89 of the former Income Tax Act (Non-taxable Transfer Income)

1. Revocation of a judgment of the first instance;

2. The Defendant’s imposition disposition of KRW 32,527,940 against the Plaintiff on October 1, 2004 shall be revoked.

3. All costs of the lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. Quotation of judgment of the first instance;

The reason why this Court is to implement is as follows: (a) the reasoning of the judgment of the court of first instance is as follows; and (b) the reasoning of the judgment of the court of first instance is as stated in the column of the reasoning of the judgment of the court of first instance, except for the dismissal of the attached Form of the judgment of the court of first instance as shown in the attached Form; and (c) thus, it is acceptable in accordance with

2. Parts in height:

Article 89 subparagraph 3 of the former Income Tax Act provides that "one house for one household as prescribed by the Presidential Decree" shall be non-taxable, and Article 154 (1) of the former Enforcement Decree of the Income Tax Act provides that "one house for one household which is composed of the resident and his spouse together with the family members who make their living at the same address or same place of residence as of the date of transfer, and one household which is composed of the said resident and his spouse together with the said family member in Korea as of the date of transfer, shall have one house in Korea for which the period of possession is three years or more in case of the house located in Seoul Special Metropolitan City, ....." Article 89 (3) of the former Income Tax Act provides that "where the period of possession of the house concerned is three years or more in Korea and the period of residence is not restricted to the period of residence and the period of residence which meet the non-taxation requirement in subparagraph 2 (c) of the proviso, Article 154 (1) of the former Enforcement Decree of the Income Tax Act provides that "one house for five years or more of residence prescribed by the former Enforcement Decree of the Income Tax Act shall be acquired and applied."

이 사건으로 동라와 비거주자인 원고가 구성하는 1세대, 이 사건 아파트의 양도일 인 2004. 6. 9.경 국내에 이 사건 아파트를 보유하고 있던 아들 추OO과 함께 1세대를 구성하고 있었는지 여부에 대하여 살피건대, 갑 2호증, 을 4호증의 3의 각 기재만으로는, 원과가 2004. 6. 9.경 추OO과 함께 1세대를 구성하고 있었음을 인정하기에 부족하고, 달리 이를 인정할 증거가 없으며, 오히려 갑 4, 5호증, 을 10호증의 각 기재를 종합하면, 원고는 이민출국한 수 추ΔΔ, 추□□과 함께 캐나다국 브리티시 컬럼비아주 웨스트 밴쿠버시 잉글우드 애비뉴 OOO(OOO Inglewood Ave West Vancouver B.C)에 거주였고, 추OO은 2002.경부터 캐나다국 브리티시 컬럼비아주 밴쿠버시 하로가 OOO-OOOO(OOO-OOOO Haro St Vancouver B.C)에 거주한 사실을 인정할 수 있으므로 원고와 추OO은 2004. 6. 9.경 각자 1세대를 구성하고 있었다고 할 것이다.

Therefore, around June 9, 2004, the transfer date of the apartment of this case, the household constituting the Plaintiff constitutes a non-taxation object following the transfer of the first house for one household, and thus, the Defendant’s disposition of this case is unlawful.

3. Conclusion

Therefore, the plaintiff's claim of this case is accepted on the grounds of its reasoning, and the judgment of the court of first instance, which has different conclusions, is unfair, so the plaintiff's appeal is accepted, and the judgment of the court of first instance is revoked, and it is so decided as per Disposition.