early 2011west 1023 ( October 27, 2011)

It is reasonable to view that it has maintained a livelihood separate from that of the house transferred at the time of the transfer.

It is reasonable to view that each of them is an independent household that has maintained a separate livelihood since he/she did not reside with the Plaintiff at the time of transferring the house as he/she actually moved his/her resident registration address to his/her own building due to a conflict with his/her family members and actually resided in the building from the time of transferring the house.

Article 89 of the Income Tax Act

2011Gudan26025 Revocation of Disposition of Imposing capital gains tax

XX Kim

Head of Sungbuk Tax Office

September 12, 2012

September 26, 2012

1. The Defendant’s imposition disposition of capital gains tax of KRW 000 on January 11, 201, which was rendered to the Plaintiff on January 11, 201, shall be revoked.

2. The defendant bears the costs of the lawsuit.

The same shall apply to the order.

1. Details of disposition;

A. On December 9, 2003, the Plaintiff acquired each of 1/2 shares jointly with MamoB on the ground of donation from MamoB on the land from Mamodong, Dongdaemun-gu, Seoul and 000-12 site and 78.88 square meters on the above ground (including land and housing), and did not file a transfer income tax report on November 24, 2009 on the ground that all of the instant housing was transferred to MamoB on November 24, 2009 and falls under the “non-taxation requirement for one household” (three-year possession and two-year residence).

B. At the time of the transfer of the instant house, the Defendant owned the Plaintiff’s attached KimD’s residential facilities and the housing (hereinafter “five-story residential facilities”) of heading 000 above the Seoul Dongdaemun-dong 00, and held 000 of the above XX Dong as the resident registration place, which is not the same household in terms of the Plaintiff’s resident registration place. However, the Plaintiff is in fact the unmarried age at the time of the transfer of the instant house was less than 30 years old, and the monthly average income is less than the minimum monthly cost of the household in January 24, 2009, and the instant disposition was imposed on the Plaintiff as of November 11, 201, on the following grounds: (a) the Plaintiff’s attached the instant house to the same household as the second house owner as of November 24, 2009, which is the transfer date of the instant house.

C. The Plaintiff underwent the pre-trial procedure.

[Ground of recognition] Facts without dispute, Gap evidence 1-1, 2, Gap evidence 4, Eul evidence 1, the purport of the whole pleadings

2. Whether the disposition is lawful;

A. Summary of the plaintiff's assertion

【The Plaintiff constitutes an independent household that is living separately at the time of transfer while running its own business as 29 years of age and who is living separately. Inasmuch as the Plaintiff was living together with the father KimD who already possessed one house, it does not constitute a family member living together. Therefore, the transfer income of the instant house should be exempted as one house for one household in accordance with the provisions of Article 89 of the Income Tax Act and Article 154 of the Enforcement Decree of the same Act.”

(b) Relevant statutes: To be listed in attached Form;

(c) Fact of recognition;

(1) After the Korean War, KimA (1928) collected money from her wife and her wife and her wife, and raised her son and her son and her son and her son and son and her son and son and son and son. KimA around 1977, purchased the instant house and resided together with her wife and her son and son and son and son around 1977. KimD created the Plaintiff’s her son and son’s son and son’s son and son around 1983, the Plaintiff’s son and son were raising the Plaintiff as the grandparent’s son and son’s son due to the marriage with KimD around 1983. Kim Da was born with MaF around 1984, but no her son was divorced with her mother and her son’s son’s son and son’s son’s her son’s her son and her her mother.

(2) around 1992, KimA purchased the site and the ground house in Dongdaemun-gu Seoul, Dongdaemun-gu, 000, around 1973, and around 1992, there were many conflicts between his wife and his wife due to the distribution of property. KimA donated the 5th floor building to KimD at the request of KimD on December 8, 2003, and the monthly rent had been made until KimA’s survival. Meanwhile, on December 9, 2003, KimA jointly donated the instant house to the Plaintiff and his wifeB.

(3) The Plaintiff, along with his grandparents, resided in the instant housing and completed the instant university. At the time of his graduation from the university, it was difficult to see that the father was a ambane and was a ambane, and the Plaintiff did not have been employed solely on the ground that he did not have been employed.

(4) On January 26, 2005, KimD continued not to live together with his parents or the Plaintiff, and on January 26, 2005, KimA’s disease resulted in the change of his resident registration address in the instant house, and thereafter, his parents and the Plaintiff were living together with his parents and the Plaintiff in the instant house from that time. The KimA died on January 6, 2007.

(5) On January 31, 2007, immediately after the death of KimGG and Kim HH, a female student of KimD, filed a lawsuit claiming the return of legal reserve due to the issue of each gift of the instant housing and the instant five-story buildings. On January 21, 2009, the Plaintiff, JungB, and KimD were jointly and severally paid KRW 00 and KRW 000 to Kim H, until December 31, 2009.

(6) From the end of 2008 to the end of 2008, the Plaintiff leased the first floor of the fifth floor building from KimD and operated the 'O distribution' wholesale and retail business in mutual name, and the amount of revenue reported as business income generated from the O distribution in 2009 reaches KRW 00. The Plaintiff spent various public charges, Internet user fees, and water purifiers rental fees, etc. on money once in business, and the Plaintiff had revenue for a long period of time against merchants.

(7) Meanwhile, as the above lawsuit was in progress, the conflict with the family, which led to a sudden increase in the conflict with the family, was moved to the five-story building on March 16, 2009, and the address was also moved to the five-story building. In fact, from that time, the five-story building register was registered as the water tank, but it was a place where the five-story building, boiler, and air conditioners were installed in the five-story building registry.

(8) KimD registered as a rental business operator for five-story buildings from around 2003, while the amount of real estate rent for the year 2009 reaches KRW 000,000 in a bank, and there was a bank loan of KRW 000 and KRW 000 in a bank, which was not an economic help to the plaintiff and HaB separately.

(9) The Plaintiff and JungB had to prepare money according to the protocol of mediation, but KimD did not object to the sale of the building of the five-story.

(10) On November 30, 2009, after the transfer of the instant house, the dueB moved his resident registration to the above XX Dong 000, which was the domicile of KimD on November 30, 2009, but it is not good between his consciousness and his own consciousness, and actually resides with the Plaintiff.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 6 through 35, Eul evidence Nos. 2 through 4, 9 through 11 (including each number), witness KimD's testimony, the purport of the whole pleadings

D. Determination

Article 89 (1) 3 of the Income Tax Act and Article 154 (u) of the Enforcement Decree of the same Act stipulate that one house for one household exempt from capital gains tax refers to the case where the resident and his spouse together with the family members who make their living at the same address or same place of residence, and one household comprised of them together with the family members who make their living at the same address or same place of residence, owns one house in Korea as of the date of transfer.

According to the above facts, the plaintiff resided in the house of this case with his grandparent's mother's divorce, etc. for a long time, and the plaintiff's father KimD was living separately outside the 2nd divorce, and the plaintiff's father KimA resided in the house of this case with his father's father KimB as the plaintiff's father's son's son's son's son's son died with his son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's YB's son's son's son's son's son's son's son's son's son's son's son's 5th floor.

Therefore, the disposition of this case, based on the premise that the Plaintiff’s attachment KimD was actually the same as the Plaintiff and that the Plaintiff constitutes two houses for one household at the time of transfer of the instant house, is unlawful.

3. Conclusion

The plaintiff's claim shall be accepted with due reason.