Seoul Administrative Court 2010Gudan6055 ( October 20, 2010)

early 209west3666 (2010.02.04)

A parent may not be deemed to constitute an independent household;

Since his/her wife, who is a member of a household, resides independently, the transferred house is one house for one household, but it is difficult to view that his/her wife resided independently from his/her other person in view of his/her residential environment, the result of his/her inquiry into the Internet, etc., and it is difficult to view that he/she actually resided independently.

2010Nu39061 Revocation of Disposition of Imposing capital gains tax

XX

O Head of tax office

Seoul Administrative Court Decision 2010Gudan6055 decided October 20, 2010

June 3, 2011

June 17, 2011

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 imposition of capital gains tax of KRW 237,749,720 against the Plaintiff on September 1, 2009 shall be revoked.

1. Quotation of judgment of the first instance;

The reasons to be stated in this judgment are the judgment of the first instance except for the judgment of paragraph (2) on the matters that the plaintiff claims additionally in the trial.

2. Determination on the additional argument

A. The plaintiff's assertion

Although this case’s disposition was unlawful on the premise that this case’s disposition on the premise that this case’s disposition did not constitute a separate household with the Plaintiff, under the premise that this case’s disposition did not constitute a separate household with the Plaintiff, on the basis of the result of the investigation at the time of the transfer after the transfer, even though this case’s transfer of this case’s real estate had not been constituted by the Plaintiff and the Plaintiff and one household.

B. Determination

1) One of the non-taxable capital gains list one house for one household as determined by the Presidential Decree and the land appurtenant thereto, which is within the area calculated by multiplying the area on which the building is built by the ratio as determined by the Presidential Decree by the area of the land, and the fact that the "one house for one household and the land appurtenant thereto" as referred to in this context meet the non-taxable requirements of capital gains tax shall be deemed to have the burden of proof for the taxpayer, barring special circumstances (see Supreme Court Decision 2005Du8443, Dec. 23, 2005).

2) In light of the above legal principles, the Plaintiff bears the burden of proving that this case was transferred to the instant house at the time of November 15, 2007, which was the time of transfer of the instant real estate, and that this case was not constituted with the Plaintiff and one household.

In order to prove this, the plaintiff submitted Gap evidence Nos. 13, 14, 18, 22, 29, 30, 35 (including paper numbers).

However, in light of the following circumstances acknowledged by the statements, etc. of Eul Nos. 4 through 8 (including virtual numbers), it is difficult to recognize that the above documentary evidence submitted by the plaintiff alone was residing in the housing of this case on November 15, 2007, and evidence otherwise acceptable.

shall not be effective.

① In light of the structure of the instant housing, it appears that it would not be easy for the instant housing to live together with the largestB and their children. Although the parents’ houses are located nearest, it is difficult to obtain the reasons for the said AA to live separately in the instant housing in poor residential environment.

② The Plaintiff asserted that the said A was residing in the instant house even at the time of the Defendant’s on-site investigation, which was around March 2010, but it is difficult to view that the said A was residing in the room of the instant house when considering the housing protection condition, Internet use status, etc. that the said A had been used at the time.

③ The Plaintiff submitted evidence No. 22 to prove the fact that the above A had taken off the subway from September 2008 to December 2008 of the same year, but failed to submit the following details of the use of the post-paid transportation card at the time before and after November 15, 2007, when the real estate of this case was transferred.

3) Therefore, since the transfer of the instant real estate by the Plaintiff cannot be deemed as a transfer of one house for one household subject to non-taxation, the instant disposition by the Defendant is lawful.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit, and the judgment of the court of first instance is justified as it is so decided as per Disposition. Thus, the plaintiff's appeal is dismissed as it is without merit.