One household at the time of the transfer of the right to move in shall own two houses in addition to the right to move in and fall under one house for one household.

The transferor has independent income of 30 years of age or older, and the transferor transferred the house with his own ability and became the right to move into redevelopment, but the house acquired by his own ability is the lessee, his father and resident registration, but his father and resident registration were separated, but the house is deemed to have been living together with his father for a considerable period of time.

Article 89 of the Income Tax Act [Non-taxable Transfer Income]

Article 154 [Scope of “One House for One Household”) of the Enforcement Decree of the Income Tax Act

1. The plaintiff's claim is dismissed.

2. Litigation costs shall be borne by the plaintiff.

Cheong-gu Office

The Defendant’s disposition of imposition of capital gains tax of KRW 11,561,650 against the Plaintiff on August 1, 2004 is revoked.

1. Details of the disposition;

A. On October 5, 1996, the Plaintiff acquired and resided in ○○○○-dong ○○○○○○○-dong ○○○○○○-dong 69 square meters and its ground (hereinafter “instant one house”).

B. However, as a housing redevelopment project was implemented in ○○ Dong, including the instant one, the Plaintiff was selected as an occupant of 104 Dong 1201 from among the apartment units scheduled to be newly constructed from ○○ Housing Redevelopment Association in accordance with the management and disposal plan approved on June 27, 201. The management and disposal plan above is the sale standard value of the instant one house in 78,743,413, and the amount to be additionally paid by the Plaintiff is KRW 107,570,019.

C. On the other hand, on November 27, 2001, the Plaintiff acquired ○○○-dong ○○○○-dong ○○○○-dong ○○○-dong ○○○○-dong ○○○-dong ○○○○-dong ○○○-dong hereinafter referred to as “instant 2 house”) on the other hand, on April 24, 2003, ○○-dong ○○-dong ○○-dong ○○-dong ○○-dong 47.6 square meters and its ground (hereinafter referred to as “the third house”).

D. After that, on June 7, 2003, the Plaintiff transferred the status of being selected as the occupant of the above apartment to ○○○○○ on 250,000,000 won.

E. On August 1, 2004, the Defendant calculated gains from the transfer of the occupancy right of this case as KRW 57,447,507 [250,00,000-(253,413 + KRW 107,570,019 + Necessary expenses + KRW 6,239,061] based on the actual transaction price, and imposed KRW 11,561,650 as the transfer income tax reverted to the year 2003 (hereinafter “instant disposition”).

[Based on Recognition] Uncontentious Facts, Gap evidence 1 through Gap evidence 3, Gap5 evidence, Gap9 evidence, Eul evidence 1 to 5-1, Eul evidence 6-1 to 5, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) At the time of transferring the right to move into the instant housing, the Plaintiff resided in the instant housing 2 together with his father at the time of transferring the right to move into the instant housing 32 years of age. However, the Plaintiff was living independently in the instant housing 1, as well as the Plaintiff was moving into the instant housing 2 house due to the implementation of the redevelopment project, and was moving into another place around October 2003. Therefore, the Plaintiff was not a “family member living together with his father at the time of transferring the right to move into the instant housing 3 years, but a “family member living together with his father at the time of transferring the right to move into the instant housing 2 years of age.” Since the Plaintiff transferred the right to move into the instant housing 1 year after acquiring the instant housing 3 years of age, the transfer of the right to move

(2) Even if the transfer of the instant occupancy right does not constitute a non-taxation requirement for the transfer of one house by one household, the Plaintiff acquired the instant one house in KRW 110,00,000, and thus, the said acquisition value should be reflected in calculating the transfer margin. Nevertheless, the Defendant calculated the transfer margin of the instant occupancy right without reflecting the said acquisition value, and thus, the instant disposition was unlawful.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

(1) Judgment on the plaintiff's first argument

According to Article 89 subparagraph 3 of the Income Tax Act and Article 154 (1) and (6) of the former Enforcement Decree of the Income Tax Act, a household comprised of a resident and his/her spouse together with a family (a lineal ascendant, descendant and sibling of a resident and his/her spouse) who lives together at the same address or same place of residence shall not be subject to the transfer income tax on the transfer income of a house whose retention period is three years or longer as of the transfer date.

However, comprehensively taking account of the overall purport of the pleadings in the testimony of the witness, evidence Nos. 5, evidence Nos. 1, 5-1, 6-1, 6-1 through 5, and ○○○○, the two houses of this case are the first underground floor, the first basement floor, the second floor above ground, and the second floor above ground are the houses. On Nov. 27, 2001, the Plaintiff moved into the two houses of this case on Nov. 27, 2001, while residing in his parents, while living in the house of this case on Jun. 7, 2003. After transferring the right to move into the house of this case on Oct. 20, 203, the Plaintiff moved into the house of this case on Oct. 20, 200, the Plaintiff’s resident registration card was registered as the father of the Plaintiff’s ○○○○○ household at the time of the Plaintiff’s residence from the 2 houses of this case.

According to the above facts, the plaintiff was living together with his father at the time of transferring the right of occupancy in this case for two years from the 2nd unit of this case to the ○○○○, his father. Even if the plaintiff was 30 years of age or older at the time of transfer of the right of occupancy in this case, or there was an independent income, such circumstance alone cannot be deemed that the plaintiff did not have a father and father at the time of transfer of the right of occupancy in this case (Article 154 (2) 1 of the former Enforcement Decree provides that where the resident's age is 30 years or older or there is no spouse, it shall be deemed as one household even if there is no spouse. However, if the resident did not have a spouse, it shall not be deemed as one household under Article 154 (1) of the above Enforcement Decree, but if the resident's age is more than 30 years or income is more than 30 years or more, it shall not be deemed as one household under Article 154 (1) of the former Enforcement Decree, and therefore, it shall not be deemed as the plaintiff and 14 of the former Enforcement Decree.

(2) Judgment on the second argument by the Plaintiff

The evidence that the Plaintiff acquired the instant house in KRW 110,00,000 and the testimony of ○○○○○○○○○ was made. However, in light of the fact that the Plaintiff testified in this court that at the time of acquiring the instant house 1, the Plaintiff paid only the remainder of the deposit except the deposit for the deposit for lease, but there is no indication as to the deposit for lease deposit in the evidence No. 9, and that ○○○ testified that the Plaintiff withdrawn the money from the deposit account and paid part of the deposit for sale, but the Plaintiff did not submit any financial transaction data relating thereto, it is difficult to view that the Plaintiff acquired the instant house in KRW 110,00,000 only with the testimony of ○○○○○○’s witness and the statement of evidence No. 9 and the testimony of ○○○○○○○ does not have any other evidence to acknowledge this. Therefore, this part of the Plaintiff’s assertion is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.

Relevant statutes

[Income Tax]

Article 89 (Non-Taxable Transfer Income Tax) shall not be levied on any of the following incomes (hereinafter referred to as "transfer income tax"):

3. Income accruing from a transfer of one house for one household as prescribed by the Presidential Decree and the appurtenant land within the area calculated by multiplying the area on which the building is built by the ratio as determined by region under the Presidential Decree; and

[The former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 18044 of Jun. 30, 2003; hereinafter referred to as the "former Enforcement Decree")]

Article 154 (Scope of One House for One Household)

(1) The term “one house for one household as prescribed by the Presidential Decree” in subparagraph 3 of Article 89 of the Act means the case where a household comprised by a resident and his spouse together with the family members living together with him at the same address or same place of residence, has one house in Korea as of the date of transfer, and the holding period of the relevant house is three years or longer.

(2) In case where falling under one of the following subparagraphs, it shall be considered to be one household under paragraph (1) even if one has no spouse:

1. Where the relevant resident is 30 or more years old, or where he has the income as prescribed in Article 4 of the Act;

(6) The term "family" in paragraph (1) means the lineal ascendants and descendants (including their spouses) and siblings of the resident and his/her spouse, and includes those who temporarily left the original address or dwelling place for school attendance, medical treatment for diseases, situations of work or business.

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

(1) Where one household which owns one house in the Republic of Korea has come to temporarily possess two houses by acquiring another house before transferring such house, and transfers the previous house within one year from the date of acquiring another house (5) , it shall be deemed to be one house for one household, and the provisions of Article 154 (1) shall be applied (hereinafter referred to as " omitted").

(16) Where a member of an Urban Redevelopment Association under the Urban Redevelopment Act or a reconstruction association under the Housing Construction Promotion Act (including land annexed thereto) transfers the status of being selected as an occupant through the association (including land annexed thereto as of the date of transfer), such status shall, notwithstanding the provisions of Article 94(1)2 (a) of the Act, be considered as one house for one household as provided in Article 154(1).

[Supreme Court Decision 2006Du15998 ( December 21, 2006)]

The appeal is dismissed.

The costs of appeal are assessed against the Plaintiff.

Although the lower judgment was examined in light of the records of this case, it is recognized that the assertion on the grounds of appeal falls under Article 4 of the Act on Special Cases Concerning Procedure

Therefore, the appeal is dismissed in accordance with Article 5 of the above Act. It is so decided as per Disposition by the assent of all participating Justices on the bench.

[Seoul High Court 2006Nu5429 (Law No. 25, 2006)]

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 disposition of imposition of capital gains tax of KRW 11,561,650 against the Plaintiff on August 1, 2004 by the Defendant shall be revoked.

1. The reasons why a party member explained concerning this case are the same as the reasons stated in the judgment of the court of first instance, and thus, they are cited in accordance with Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act

2. If so, the judgment of the first instance is legitimate, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.