Seoul Administrative Court 2012Gudan9386 ( December 05, 2012)

Cho High Court Decision 201Do3265 ( October 19, 2012)

It is difficult to recognize that he/she has resided in a transferred house for at least two years.

Even after the lease of the transferred house, it seems practically impossible to reside with three tenants' family members without a separate bank in the 1 column of the old apartment house, and in light of the fact that credit card use and financial transaction are mainly used in the vicinity of the family's domicile, it is deemed that only the transferred house has left the resident registration.

2013Nu1524 Revocation of disposition of imposing capital gains tax, etc.

AA

Director of the District Office

Seoul Administrative Court Decision 2012Gudan9386 decided December 5, 2012

July 4, 2013

July 25, 2013

1. Revocation of a judgment of the first instance;

2. The plaintiff's claim is dismissed.

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

1. Purport of claim

The Defendant’s imposition of capital gains tax OOOO on July 1, 201 is revoked.

2. Purport of appeal

The same shall apply to the order.

1. Quotation of judgment of the first instance;

From 1. to 2. In the reasoning of the judgment of this court, the following facts are the same as the corresponding part of the reasoning of the judgment of the court of first instance (from 2.2 to 3.7) except for those cases as follows. Thus, it is cited in accordance with Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

〇 제2쪽 밑에서 2째 줄의 "졸업하였다 다음에 "2008년도 대학수학능력시험일은 11월 13일이었다"를 추가한다.

〇 제3쪽 제4행의 "이 사건 주택을 임대한 후"를 "이 사건 주택을 보증금 OOOO원에 임대한 후"로 고치고， 제5행의 "주민등록을 이전하였다" 다음에 "BBB은 2008. 9. 2. 부터 2009. 2. 13.까지 이 사건 주택에서 처 및 8살짜리 아들 1명과 함께 거주하였다" 를 추가한다.

〇 제3쪽 제5행 다음에 아래의 내용을 추가한다.

"(5) The instant house is a apartment house with an area of 60.93 square meters (around 18 square meters) newly built around 1977, consisting of one room, three partitionss (the sunken, the middle part, the middle part), one falling, the bees, the bees, and the underground part." (6) The Plaintiff moved out from the instant house, and leased the instant house to another lessee as security deposit OOO.

(7) On August 31, 2008, CCC, a parent of the Plaintiff, deposited OOOO in OO-dong, O-dong, the location of DD apartment, with cash withdrawal machines, and thereafter made a number of financial transactions in the above O-dong.

(8) On June 17, 2008, the Plaintiff received medical treatment from EE members located in OOO-dong OO-dong O-dong units of the instant housing, while the Plaintiff received medical treatment from, or purchased medicines from, OO-dong units of the instant housing units, such as O-dong units of the instant housing units, July 15, 2008, and July 18, 2008, and August 1, 2008, and on December 31, 2008, O-dong units of the EE units of the O-dong units of the O-dong units of the O-dong units of the O-dong units, and G dental clinics, and HH pharmacies pharmacies.

(9) On July 3, 2008, the Plaintiff purchased goods using a credit card (II card, hereinafter the same shall apply) at the O-A-dong unit for nine times during the month of July 2008, the Plaintiff purchased goods at the O-A-dong O-A-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-car on more than one occasion after purchasing goods using the credit card on July 6, 2008.

(10) On June 26, 2008, the Plaintiff continued to engage in financial transactions with the second bank OOO branch on six occasions on and after July 2008, including the withdrawal of cash OOO branch from the second bank O branch on and after July 26, 2008. Meanwhile, the Plaintiff engaged in financial transactions with the second bank O branch on two occasions during the month in which July 2008, and during the month in which August 2008, the Plaintiff engaged in financial transactions with the second bank O branch on four occasions, and thereafter, conducted financial transactions with the second bank O branch on one or two occasions each month until December 2008.

(11) Urban gas users of the instant housing changed from September 14, 2006 to July 30, 2008, and thereafter to JJ.

〇 제3쪽 제6-7행의 "[인정근거]"란에 "항소심 법원의 금융거래정보 제출요구에 대한 KK은행， II차드， II은행의 각 회신， 항소심 법원의 국민건강보험공단， 서울도시가스 주식회사에 대한 각 사실조회결과"를 추가한다.

2. Determination

A. Article 89 (1) 3 of the Income Tax Act provides that "one house for one household prescribed by Presidential Decree" and its appurtenant land shall be non-taxable capital gains, and Article 154 (1) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 22950, Jun. 3, 201; hereinafter the same shall apply) provides that "one house for one household prescribed by Presidential Decree" in Article 89 (1) 3 of the Income Tax Act means that one household (hereinafter referred to as "one household") composed of the resident and his/her spouse together with the family members living together in the same address or same place of residence, has one house in the Republic of Korea as of the date of transfer, and the period of possession of the relevant house is three or more years (in cases of a house located on December 1, 200, the period of possession of the relevant house is three or more years and the period of residence is two or more years, and that two or more years are not subject to transfer income tax for 197 percent or more of the relevant house."

In addition, Article 154 (3) of the former Enforcement Decree of the Income Tax Act provides that "the period of residence under paragraph (1) of the same Article shall be the period from the date of transfer to the date of transfer on the resident registration card, and as long as the resident is indicated as having resided on the resident registration card, the fact of residence shall be presumed (see, e.g., Supreme Court Decision 83Nu395, Oct. 25, 1983). However, this cannot be viewed as the purport that the mere provision for the convenience of proof is nothing more than the provision for the convenience of proof, and the fact of residence shall only follow the entry on the resident registration card (see, e.g., Supreme Court Decision 86Nu562, Apr.

B. In the instant case, the Plaintiff filed a move-in report on the instant house on September 12, 2006 under the resident registration card and filed a move-in report on September 24, 2008 to DD apartment on September 24, 2008, and thus, it is presumed that the Plaintiff had resided in the instant house for at least two years. However, in light of the following circumstances known by the evidence and the facts and the purport of the entire pleadings, it is reasonable to determine that the Plaintiff started moving-in and staying in the instant house with his children before the lapse of two years from September 12, 2006, and that the actual period of living in the instant house falls short of two years, and that such presumption was reversed, and therefore, the instant disposition on the premise is lawful, and the Plaintiff’s assertion is without merit.

(1) The Plaintiff leased the instant house to BB on September 2, 2008, and BB resided in the instant house with her wife and son from that time. Meanwhile, the Plaintiff asserted that, after September 2, 2008, she resided in the instant house with her husband who was in the middle room of the instant house, and her director in the third grade, who was in the middle room of the instant house. However, the Plaintiff asserted that she continued to reside in her family in her family in her family in her middle room of the old apartment house with 60.93 square meters for exclusive use by her 60.93 square meters (18 square meters) with her family in her middle room of the old apartment house with her 3 adults without a separate her family in her first place of residence, it seems practically impossible for her 20 days of residence of her tenant in her family in her first day of pleading and her 30 days of residence in her family in her middle day of the instant apartment house.

(3) The Plaintiff leased the instant house to BB to BB, and removed from BB, and leased the instant house to another lessee to BB in terms of the deposit. Therefore, it does not seem that BB made a special and low payment of the deposit for lease and leased the instant house. Nevertheless, there is doubt as to whether BB was understood that three of the Plaintiff’s family members can live together in the instant house in which three of its family members are required to reside, and the Plaintiff was unable to formally understand this.

(4) Since DNA apartment leased by the Plaintiff from the Republic of Korea completed the internal repair from the end of July 2008, there was no hindrance to the Plaintiff’s family residing therein. Moreover, around July 31, 2008 when the Plaintiff’s children transferred their resident registration to DD apartment, the Plaintiff was under medical care in OO-dong, O-dong, O-dong, O-dong, the location of DD apartment, purchased goods or provided meals using credit cards, and frequently conducted financial transactions using banks located therein (the Plaintiff’s DaCC began to conduct financial transactions from O-dong, O-dong, O-dong, O-dong, O-dong, from August 31, 2008). On the other hand, the Plaintiff’s children did not suffer from a sudden change in the hospital in the instant house after June 17, 2008, and did not suffer from a rapid decrease in the number of credit cards and the frequency of the Plaintiff’s use of urban gas from 308 J. 7, 2008.

(5) In full view of the above points, the plaintiff appears to have moved his residence from July 2008 (or from September 2, 2008, when BB commenced to reside in the housing of this case) to DD apartment, and it appears that the plaintiff left only the plaintiff's resident registration in the housing of this case even after the lapse of two years from the date of commencing his residence in the housing of this case to DD apartment after the lapse of two years from the date of commencing his residence in the housing of this case.

3. Conclusion

If so, the plaintiff's claim should be dismissed due to its reason, and the judgment of the court of first instance is unfair, and the defendant's appeal is accepted, and the judgment of the court of first instance is revoked, and the plaintiff's claim is dismissed.