Seocho 208west 2638 ( October 01, 2008)

A spouse of a resident should be deemed to form a resident and a household solely on the fact that he/she is his/her spouse.

Unlike requiring a resident or his spouse to share the same livelihood at the same address or residence as that of the resident or his spouse in order to form a household with the resident and the family, the spouse of the resident does not have any restrictions other than that of the spouse, and the spouse of the resident shall be deemed to form the resident and the household solely on the fact that the spouse is the spouse.

The contents of the decision shall be the same as attached.

Article 89 (Non-Taxable Transfer Income Tax)

Article 154 (Scope of One House for One Household)

1. The part of revocation of the disposition imposing resident tax among the lawsuit of this case shall be dismissed.

2. The plaintiff's claim for cancellation of capital gains tax imposition is dismissed.

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

The defendant's disposition of imposition of capital gains tax of 71,118,880 won and resident tax of 7,111,880 won against the plaintiff on May 6, 2008 shall be revoked.

1. Details of the disposition;

The following facts may be acknowledged in full view of the purport of the whole pleadings in the descriptions of Gap evidence 2-1, 2, Gap evidence 4-1, 2, and Eul evidence 1-1:

A. On January 28, 200, the Plaintiff acquired ○○○○-dong 4, 000 ○○○ apartment 268 206 dong (hereinafter “instant housing”) but transferred on August 12, 2003 and did not report and pay transfer income tax on the ground that the instant housing transfer is one house for one household and is exempt from transfer income tax.

B. At the time of the transfer of the instant house, the Defendant: (a) owned ○○○○○○○○○ apartment, 353 Dong 102 Dong 903; and (b) calculated gains on transfer based on the actual transaction value (transfer value of 295,00,000, acquisition value of 110,000,000) on the ground that the transfer of the instant house does not constitute one house for one household; and (c) issued a disposition imposing and notifying the Plaintiff of KRW 71,118,80 and resident tax to be imposed on May 6, 2008, on the ground that the transfer of the instant house does not constitute one house for one household.

2. The plaintiff's assertion

From 196 to 10 years from 1996, the Plaintiff, as an inevitable circumstance, has been in a separate state of divorce and has been de facto divorced while living with Ha○○, a legal wife, and an independent household. The Plaintiff did not have any intent to speculation in the housing or evade taxes. In determining one house for one household, it is reasonable to include de facto divorce in determining one house for one household. Considering such various circumstances as the equity in taxation related to the non-taxation system for one household and the unity of the provisions thereof, the Plaintiff should be recognized as a separate household even in the case of de facto divorce, and the divorce under the substance over form principle should also be considered as divorce. Considering such circumstances, the Plaintiff asserted to the purport that the transfer of the house in this case shall be considered as one house for one household and the Plaintiff shall be considered as two houses for one household, and the above disposition of capital gains tax and the income tax shall be imposed on the above resident tax.

3. Judgment on whether the disposition of revocation of resident tax is a legal method or not;

According to Article 20 (1) of the Administrative Litigation Act, a revocation lawsuit shall be filed within 90 days from the date on which the plaintiff became aware of the disposition, etc., and in full view of the purport of the entire argument as stated in subparagraph 4-2, the plaintiff is found to have received a delivery of the written notice of imposition and collection of resident tax from the defendant around May 6, 2008 on which the above disposition of imposition of resident tax was taken, and the plaintiff filed the lawsuit in this case on December 26, 2008 where the above 90 days passed since it is obvious in the record that the part of revocation of the disposition of imposition of resident tax among the lawsuit in this case

4. Propriety of imposition disposition of transfer income tax.

(a) Related statutes;

Article 89 (Non-Taxable Transfer Income Tax)

Article 154 (Scope of One House for One Household)

B. Determination

In light of the principle of no taxation without law, the interpretation of tax laws and regulations is to be interpreted in accordance with the law, barring any special circumstance, barring any special circumstance, and it is not allowed to expand or analogically interpret them without a consistent reason. In particular, the strict interpretation that can be seen as clearly preferential provisions among the requirements for reduction and exemption accords with the principle of tax equity (see, e.g., Supreme Court Decision 2001Du731, Apr. 12, 2002).

Article 154(1) of the Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 18127, Nov. 20, 2003) provides that "where one household comprised of a resident and his/her spouse together with the family members who share the same livelihood at the same address or same place of residence, has one house in the Republic of Korea as of the date of transfer," the resident as a matter of principle constitutes one household with his/her spouse, and in order to form a single-household with the resident and his/her spouse to share the same livelihood at the same address or same place of residence as the resident or his/her spouse, the resident is deemed to constitute one household with the same spouse, and thus, in order to form a single-year unit of residence with the resident and his/her spouse, the resident’s spouse constitutes one-household relationship with the resident and the same spouse, and thus, the resident’s spouse is not in violation of the principle of equity, and thus, constitutes one-household and one-household with the Plaintiff’s spouse at the time of divorce (see, e.g., Supreme Court Decision 20000Do1654, May 97.).

5. Conclusion

Therefore, since the part of revocation of disposition imposing resident tax among the lawsuit of this case is unlawful, it is dismissed, and the plaintiff's claim for revocation of disposition imposing capital gains tax is dismissed as