Daegu District Court 2010Guhap94 (2010.09.29)

Since the transfer housing is recognized as the actual owner, this disposition is legitimate for the transfer of housing to one household 2.

In light of the fact that the owner is the owner of a building register, that he/she has resided with his/her resident registration for most of the periods since he/she moved into a house transferred, and that he/she concluded a contract as a seller of a sales contract, etc., the disposition imposing capital gains tax on deeming the transfer of two houses by one household

Article 89 of the Income Tax Act

2010Nu2334 Demanding the revocation of disposition imposing capital gains tax and additional tax

Republic of Korea, Japan and one other

Head of the Gu Tax Office

Daegu District Court Decision 2010Guhap94 Decided September 29, 2010

March 25, 2011

April 8, 2011

1. All appeals filed by the plaintiffs are dismissed.

2. The costs of appeal are assessed against the Plaintiffs.

The judgment of the first instance shall be revoked. The defendant shall revoke all imposition of capital gains tax of KRW 1,794,90 for the transfer income tax of KRW 1,794,90 for the year 2006, and capital gains tax of KRW 2,164,990 for the year 2006, August 10, 2009 and imposition of capital gains tax of KRW 2,164,990 for the transfer income tax of KRW 2,164,990 for the year 206 for the plaintiff E-E as of August 10, 2009.

1. Details of the disposition;

A. This BB, including the plaintiffs, and thisCC transferred, as co-owners (each share of 1/4), the land of 00-0 large 346 square meters in Gumi-si, Seoul Special Metropolitan City, XX, 00-0 large 2 square meters in Gumi-si, the same 00-0 large 205 square meters in Gumi-si, 00-0 large 205 square meters in Gumi-si, the same 00-0 large 205 square meters in Gumi-si, and the same 00-0 large 82 square meters in 131.9 square meters in Gumi-si (hereinafter referred to as the "the housing of this case") and the unregistered housing of this case (hereinafter referred to as the "the housing of this case").

B. On May 31, 2007, the Plaintiffs reported capital gains tax of KRW 1,794,902 to the instant land except for the instant housing, and received a notice of payment stating the same tax amount as the above reported details from each Defendant.

C. On August 10, 2009, the Defendant rendered a disposition imposing KRW 5,290,510 [the total determined tax amount calculated for each of the plaintiffs - KRW 7,106,412 - each of the total determined tax amount calculated for each of the plaintiffs - KRW 1,815,902 [the capital gains tax amount of KRW 1,794,902 for the land of this case reported by the plaintiffs + KRW 21,000] on each of the plaintiffs.

D. On September 28, 2009, the Defendant partially accepted the objection filed by the Plaintiffs (in calculating the tax amount, the calculation of the transfer value of the land and building was made by adding the tax base to the individual housing price publicly announced by the local government at the initial market price of the Ministry of Public Administration and Security in calculating the transfer value of the land and building) and corrected the tax amount of KRW 2,164,990 after subtracting the transfer income tax, etc. on the land of this case from KRW 1,815,90,000, which was obtained by deducting the total determined tax amount of KRW 3,980 from the total determined tax amount of KRW 3,980,892 from the total determined tax amount of each property released by each Plaintiff to the Plaintiffs (hereinafter “each disposition of this case”).

E. The Plaintiffs were dissatisfied with each of the dispositions of this case and filed a request with the Commissioner of the National Tax Service for review on October 12, 2009, but the Plaintiffs’ request was dismissed on November 30, 2009.

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1 and 5, Eul evidence Nos. 1, 2, 5, 7, and 8 (including branch numbers; hereinafter the same shall apply) and the purport of the whole pleadings

2. Determination on this safety defense

A. The defendant's assertion

(1) In the case of capital gains tax, which is the method of filing a return, the amount of tax is determined by a return, and thus, issuing a tax notice to ensure the same tax amount as reported cannot be deemed tax assessment

(2) Therefore, the part of the instant lawsuit seeking the cancellation of the Plaintiff A’s notice of payment on May 31, 2007 is unlawful.

B. Determination

(1) The capital gains tax, the method of filing a return (from the first transfer after January 1, 200), is obligated to pay the tax amount determined at the time when the taxpayer files a return on the tax base and amount of tax, along with the return. Thus, if the taxpayer merely files a return on the tax base and amount of tax and notifies the tax payer that the tax amount should be paid without any correction as to the reported matters without any correction by the tax authority on the tax base and amount of tax, it is merely a collection disposition for the collection of the final tax and cannot be deemed a taxation subject to a revocation lawsuit (see Supreme Court Decision 2003Du8180, Sept. 3, 200

(2) In the instant case, the Plaintiff reported KRW 1,794,902 of the transfer income tax on the transfer of the instant land. Accordingly, the Defendant issued a tax notice stating that the Defendant would pay KRW 1,794,902 of the transfer income tax for the year 2006, which was calculated according to the reported details without any correction on May 31, 2007, as seen earlier. Thus, the Defendant’s tax notice that determined the tax amount cannot be deemed as a notice of taxation that determined the tax amount.

(3) Therefore, the part seeking revocation on the premise that the Defendant’s payment notice of KRW 1,794,902 on May 31, 2007 against Plaintiff Lee among the instant lawsuit constitutes a disposition imposing capital gains tax belonging to the year 2006 is unlawful.

3. Judgment on the merits

A. The plaintiffs' assertion

The housing of this case is owned by Park Do, the mother of the plaintiffs, and paid 35 million won for the transfer price to Park Do. Each of the dispositions of this case against which the defendant imposed capital gains tax by deeming the housing of this case as owned by the plaintiffs who are one household is unlawful.

B. Relevant statutes

It is as shown in the attached Form.

C. Facts of recognition

(1) On September 24, 1984, the plaintiff Lee Dong-A purchased a 70.72 square meters of a multi-story house and a 70.23 square meters of a multi-story house in the attached Table 23.23 square meters of a multi-story house in the Gu-si OOdong 00-000 on September 24, 1984, and thereafter owns it until now after completing the registration of ownership transfer in his name on the 29th of

(2) The Plaintiff Lee A and two others are registered in the general building ledger from around 1958, which was the completion date of the instant house.

(3) After moving into the instant house on September 2, 197, the Plaintiff Lee Dong-A continues to have the resident registration of the instant house except for the period from July 5, 2002 to August 20 of the same year, and from August 9, 2004 to September 1 of the same year, from each of the above OOdong 00-000 units.

(4) Plaintiff EE continues to have the resident registration of the instant house except for the period of transfer from July 5, 2002 to August 20, 2000 of the same year from the date when Plaintiff EE moved into the instant house from July 5, 2002 to the date when Plaintiff EE transferred from July 5, 2002 to the date when Plaintiff EE moved into the instant house. On September 2, 2004, Plaintiff EE is living together with Plaintiff EA from the date when Plaintiff EE reported to the head of household as of September 2, 2004 to the date when Plaintiff EE reported to the head of household.

(5) On March 9, 2004, this BB, including the Plaintiffs, and thisCC entered into a sales contract to sell all of the instant land, housing, facilities, and obstacles to 249,490,000 won with 249,49,000 won, including the Plaintiffs as the seller of the sales contract, and the goods evaluation protocol attached to the sales contract was assessed as 18,49,000 won and calculated as included in the above sales contract.

[Reasons for Recognition] Unsatisfy, Gap evidence 1, 3, Eul evidence 2 to 6, the purport of the whole pleadings

D. Determination

(1) In light of the following circumstances acknowledged by the above facts, i.e., ① the owner of the instant house under the general building ledger is Plaintiff A and two other persons, ② the Plaintiffs had a resident registration address in the instant house for the most recent period since they moved into the instant house from September 2, 197, and ③ the Plaintiffs concluded a contract with the seller of the instant land as well as the instant land and included the price of the instant housing in the sales price. Accordingly, it is reasonable to deem that the Plaintiffs owned the instant housing. Accordingly, it is insufficient to recognize that the Plaintiffs owned the instant housing by following the above circumstances solely based on the statement of evidence No. 4 and the testimony of JD, submitted by the Plaintiffs, and alone, it is insufficient to acknowledge that the instant housing was owned by ParkD.

(2) As argued by the Plaintiffs, even if the instant housing is owned by Park Jae-won, it shall be deemed to be the owner of one house for one household in order to be subject to non-taxation of capital gains tax, and among them, one household refers to a group consisting of the residents and their spouse together with the family members who share the same livelihood at the same address or same place of residence. In this case, according to the witness Park Jong-D’s testimony, Park Jong-D’s testimony can be acknowledged that Park Jong-chul is living together with the Plaintiffs in the instant housing. Accordingly, as long as the Plaintiffs constituting one household and the Plaintiff Lee Dong-D already own the said Odong 00-000 housing, the transfer of the instant housing cannot be deemed to be a transfer of one house for one household subject to non-taxation of capital gains tax.

(3) Therefore, the plaintiffs' assertion is without merit.

4. Conclusion

Of the instant lawsuit, the part of the Defendant’s claim for revocation of the disposition of KRW 1,794,902 for transfer income tax belonging to the year 2006 against Plaintiff EA on May 31, 2007 is dismissed. The judgment of the court of first instance that dismissed all of Plaintiff E-E’s remaining claims and Plaintiff E-E’s claims is justifiable, and the Plaintiffs’ appeal is dismissed on the grounds that it is without merit.