Seoul Administrative Court 2010Gudan88 ( October 10, 2010)

Seocho 209u321 ( November 26, 2009)

No non-resident may benefit from one house for one household;

The husband of the plaintiff is a civilian military employee, the plaintiff is a U.S. nationality, and the remaining family members are not residing in the Republic of Korea, and thus they cannot be entitled to non-taxation benefits for one household because they constitute non-taxation benefits

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

1. The plaintiff's appeal is dismissed.

2. The part of the claim for cancellation of the disposition imposing resident tax, among the lawsuits added in the trial, shall be dismissed, and the remainder of the claim shall be dismissed;

3. The costs of the lawsuit after the appeal shall be borne by the plaintiff.

The decision of the first instance court is revoked. The defendant's imposition disposition of KRW 48,098,450 on capital gains for the year 2006 against the plaintiff and KRW 4,809,840 on July 1, 2010 on the disposition of imposition of KRW 4,809,840 on capital gains for the year 2006 and KRW 4,809,840 on the non-declaration of report against the plaintiff, and the disposition of imposition of KRW 11,42,62 on the non-declaration of report as to the plaintiff on July 1, 2010 (the plaintiff added a claim for revocation of the disposition of imposition of resident

1. Quotation of judgment of the first instance;

The reasoning for this Court’s explanation concerning this case is as follows, and the reasoning for this Court’s ruling is as stated in the part of the reasoning for the first instance judgment except for the addition of the following: Article 8(2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act.

[Attachment]

2. Whether the instant disposition is lawful

A. The parties' assertion

1) Plaintiff: The Plaintiff, as a U.S. national in 200, was living together with the permission to change his status of stay (A-3 ? F-4) from the Ministry of Justice in Korea in 2000, and thus constitutes a resident who has his residence in Korea for at least one year. Therefore, the Plaintiff’s apartment transfer in this case constitutes a transfer of one house for one household which is exempt from capital gains tax, and thus, the instant disposition imposing capital gains tax on the Plaintiff is unlawful.

"2) The defendant: the plaintiff and his spouse are stateless persons of the United States, and the plaintiff's spouse are civilian employees of the United States Armed Forces stipulated in Article 1 of the Korea-U.S. Administrative Agreement. However, general rules 1-03 (non-residents on the status of diplomats, etc.) of the Income Tax Act provide that the members, civilian employees of the United States Armed Forces stipulated in Article 1 of the Korea-U.S. Administrative Agreement, and their family members (except in cases where a domestic address is reported for the purpose of evading the income tax of the United States) shall be deemed non-residents according to their status, regardless of their domestic address and the period of their residence in Korea. The plaintiff is obvious that they are non-residents in light of their status as family members of the civilian employees of the United

It is as shown in the attached Form.

C. Determination

Article 89 (1) 3 of the former Income Tax Act (hereinafter referred to as the "Income Tax Act") and Article 154 (1) of the Enforcement Decree of the same Act stipulate that one household comprised of a resident and his/her spouse together with the family members living together with the same address or same place of residence shall have one house in the Republic of Korea as of the date of transfer. Thus, in order to be eligible for non-taxation of capital gains tax as one house for one household, a taxpayer shall be a resident.

Therefore, we look at whether the plaintiff is a resident under the Income Tax Act.

"Classification of residents or non-residents under the Income Tax Act shall be classified pursuant to Article 1 of the Income Tax Act and Article 2 of the Enforcement Decree of the same Act: Provided, That with respect to the members, civilian workers and their families of the United States Armed Forces prescribed in Article 1 of the Korea-U.S. Administrative Agreement, it shall be regarded as non-resident according to their status regardless of whether they have a domicile in the Republic of Korea and the period of their residence (Common Provisions 1-03 of the Income Tax Act), and considering the overall purport of the arguments in the statement in subparagraph 1 and subparagraph 4 of Article 1 of the Korea-U.S. Administrative Agreement, the plaintiff's husband is a civilian worker of the United States Armed Forces prescribed in Article 1 of the Korea-U.S. Administrative Agreement, and even if the plaintiff had no domicile in the Republic of Korea for the purpose of evading the income tax of the United States, Article 121 (2) of the Income Tax Act shall not apply to the non-resident, even if the plaintiff is a non-resident, it shall not be interpreted as non-taxable under Article 121 of the Income Tax Act.

Therefore, the plaintiff does not constitute one house non-taxation requirement for one household, so the disposition of this case is legitimate.

[Supplementary Parts]

A. Whether the lawsuit on the revocation of the disposition imposing resident tax is legitimate

Although the Plaintiff sought revocation of the disposition imposing the resident tax on the Defendant to pay the pertinent income tax, pursuant to Article 177-4(1), (2), and (5) of the former Local Tax Act (amended by Act No. 9924, Jan. 1, 2010), the resident tax to be imposed is a local tax that must be paid to the head of the Si/Gun having jurisdiction over the place where income tax is paid (in cases of a Metropolitan City, the head of the Gu; hereinafter the same shall apply). If the head of the tax office determines the income tax by the method of rectification, determination, etc. under the Framework Act on National Taxes or the Income Tax Act, the head of the relevant Si/Gun also imposed and imposed the resident tax to be imposed on him/her, and thus, even if the resident tax to be imposed and imposed on him/her is deemed to have been imposed and collected by the head of Yongsan-gu, which is the head of the Gu having jurisdiction over the place where

B. As seen earlier, the disposition of this case, namely, as long as the disposition of imposition of capital gains tax is lawful, the disposition of imposition of additional tax on negligent return and additional tax on negligent return on a premise that the disposition is lawful. Thus, the Plaintiff’s assertion is without merit.

2. Conclusion

Therefore, the judgment of the court of first instance is justified, and the plaintiff's appeal is dismissed as it is without merit, and the part of the lawsuit on the revocation of the resident tax imposition disposition among the claims added in the trial is dismissed, and the remaining claims are dismissed as per Disposition.