Seocho 2010west 1369 (Law No. 13, 2010)

Persons who have been a single-household shall be siblings, and shall be two persons who have been two houses per household.

It is reasonable to view that a sibling with different father constitutes a sibling, and even if a person has used three different rooms, he/she shall be deemed as a "family living together at the same address or same place of residence" and thus a disposition imposing capital gains tax is legitimate.

2010Gudan26127 Revocation of Disposition of Imposing capital gains tax

Song-ri

O Head of tax office

April 22, 2011

May 20, 2011

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposing KRW 90,512,910 on the Plaintiff on January 4, 2010 shall be revoked.

1. Details of the disposition;

A. The Plaintiff transferred the DCC 292-3 EEE 502 (hereinafter “instant house”) on February 29, 2008, which was acquired on February 10, 2003, the Plaintiff did not report the transfer income tax.

B. On January 4, 2010, the Defendant: (a) owned another house (GHHHJ 20 KK apartment 1, 105 Dong-dong 105) that is in the same household in the same household at the time of the transfer of the instant house; (b) held that it constitutes two houses for one household; and (c) determined and notified the Plaintiff of KRW 90,512,910 for the transfer income tax for the year 2008.

[Ground of recognition] Facts without dispute, Gap evidence 1, 9 evidence, Eul evidence 1, the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

For the following reasons, the instant disposition is unlawful.

① The Plaintiff and SongF do not constitute a sibling pursuant to Article 154(6) of the Enforcement Decree of the Income Tax Act as a dong sibling with different father. Therefore, the Plaintiff and SongF does not constitute one household pursuant to Article 154(1) of the Enforcement Decree of the Income Tax Act. Therefore, the instant housing constitutes one house per household.

② Even if the Plaintiff and SongF constituted the above siblings, the instant house constitutes one house for one household, since the Plaintiff and SongF are living differently and do not constitute one household under paragraph (1) of the same Article.

(b) Related statutes;

C. Determination

(1) Whether a sibling is a sibling

First of all, it is about whether the dong sibling, who has different father, falls under the category of sibling under Article 154 (6) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 22034, Feb. 18, 2010; Presidential Decree No. hereinafter referred to as "Enforcement Decree of the Income Tax Act").

Article 100 (1) 3 of the current Civil Code (amended by Act No. 4199 of Nov. 13, 1990 and enforced from January 1, 1991) stipulates "a sibling of an inheritee" as a third-class inheritor. In this context, "a sibling of an inheritee" is removed from discrimination between father and mother within the scope of relatives at the time of amendment of the Civil Code, and there is no discrimination between father and father or between father and father and mother as well as between father and mother, in light of the priority of inheritance and inheritance, and there is no discrimination between father and father and mother as to the order of inheritance and inheritance, it is reasonable to include both father and mother brothers and sisters (see Supreme Court Decision 96Da5421 of Nov. 28, 1997). Since the Civil Code regulates relatives and inheritance relations, it constitutes a law regulating inheritance, the plaintiff's 154 (6) of the Enforcement Decree of the Income Tax Act's interpretation of sibling and sibling is without reason.

(2) Whether a sibling who shares the same livelihood is a sibling (family member)

According to Article 89 (1) 3 of the Income Tax Act and Article 154 (1) and (6) of the Enforcement Decree of the Income Tax Act, one household means the household in which the resident and his spouse make a living together with the family members who make their living at the same address or same place of residence. The family means the lineal ascendants and descendants (including their spouses) and siblings of the resident and their spouse, and the person who temporarily left the original address or dwelling place due to school attendance, medical care for diseases, situations of work or business.

In this context, the term "family living together with the same address or residence" refers to a family member who lives with the same family register or who lives with the same household under the resident registration card in the daily life without requiring the same family member to share the same household under the resident registration card. (See, e.g., Supreme Court Decision 85Nu194, Nov. 26, 1985).

In this case, considering the following circumstances, Gap's evidence 4 through 8, 10, and Eul evidence 3-1 through 5, it is reasonable to view that even if the plaintiff and SongF used three different rooms, the plaintiff and SongF constitute "family members living together with the same address or domicile" under different premise, the plaintiff's above assertion 2 is without merit (in this case, even if the plaintiff had no spouse at the time of transfer of the house, it seems that the income under Article 4 of the Income Tax Act is registered as one household under Article 154 (2) 3 of the Enforcement Decree of the Income Tax Act, i.e., the plaintiff's domicile or non-taxation under Article 154 (2) 14 of the Income Tax Act, which is deemed to have been registered as one household under Article 2 subparagraph 6 of the National Basic Living Security Act, and thus, it is reasonable to view that the plaintiff's domicile and non-taxation can be deemed to have been established under Article 154 (2) 14 of the Enforcement Decree of the Income Tax Act as the Income Tax Act.

"O 원고는 2004. 3. 1.부터 서울 LL구 MM동 1227에서영노래연습장'을 운영하여 2004년 17,416,680원, 2005년 15,789,497원, 2006년 13,511,362원, 2007년 9,587,437원, 2008년 16,291,773원의 소득이 있는 것을 전제로 종합소득세가 결정된 바 있는데, 원고는 위 노래연습장을 운영하면서 적지 않은 수입을 얻고 있었던 것으로 보인다.",O 반면 송FF은, 근로소득원천징수 영수증에 의하면, 2008. 1.부터 2008. 6.까지 NN감정평가법인에서 7,700,000원, 2008. 8. 1.부터 2008. 12. 31.까지 QQQ감정평가법인에서 5,100,000원, 2009. 1. 1.부터 2009. 12. 31.까지 QQQ감정평가법인에서 12,600,000원의 급여를 각 받은 사실이 인정되는바, 이 사건 주택의 양도 당시인 2008. 2. 29.에는 송FF의 소득이 국민기초생활보장법 제2조 제6호의 최저생계비(보건복지부 고시 2007-76호, 2008년 1인 가구)인 월 463,047원을 초과하고 있었던 것으로 보이기는 하나, 2008년 전에는 원고의 근로소득세가 원천징수 된 바 없는 것으로 보이고, 이 사건 양도 당시인 2008. 2. 29.에는 송FF이 근로소득을 얻기 시작한지 불과 수개월이 지났을 뿐으로 보인다.

O The Plaintiff asserts that, at the time of the transfer of the instant house and before that time, the Plaintiff received KRW 200,000 from the SongF each month living expenses, and thus, the Plaintiff and SongF shared living expenses. However, there is no evidence to acknowledge this.

3. Conclusion

Thus, the plaintiff's claim is dismissed as it is without merit.