The Plaintiff constitutes a non-resident at the time of transferring the instant house.

The plaintiff denies the application of non-taxation for one household as the non-resident at the time of the transfer of the instant house, and the disposition imposing capital gains tax is legitimate.

Article 1-2 of the Income Tax Act, Article 2 of the Enforcement Decree of the Income Tax Act

2018Gudan14380

Kim*

AA Head of the Tax Office

o October 10, 2018

o October 10, 2018

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The Defendant’s disposition of imposition of capital gains tax of 222 and 00 won on September 1, 2017 against the Plaintiff on September 1, 2017 is revoked.

1. Details of the disposition;

A. Acquisition and transfer of the instant house

On July 29, 1995, the Plaintiff newly built a multi-family housing with 235.62 square meters on the ground of ○○○-dong, Seoul ○○-dong 76-13 square meters. On November 3, 2003, the Plaintiff acquired each gift from ○○-dong, Seoul ○○-dong, 76-13 and 76-16 land from ○○-dong, Seoul ○-dong, ○○-dong, and then transferred the instant multi-family housing acquired by the Plaintiff (hereinafter referred to as the “instant housing”) on November 3, 2014, and transferred the instant housing in KRW 1,100,000,000 (hereinafter referred to as the “transfer of the instant case”).

B. Preliminary return and payment of capital gains tax on the premise that the Plaintiff is a resident

On January 14, 2015, the Plaintiff made a preliminary return and payment of capital gains tax of 1,000 won for the transfer of this case to the Defendant in relation to the transfer of this case.

Under the premise that the Plaintiff, at the time, constitutes a resident prescribed by Article 1-2 (1) 1 of the former Income Tax Act (amended by Act No. 12852, Dec. 23, 2014; hereinafter the same shall apply) on the ground that the instant house constitutes one house for one household prescribed by Presidential Decree under Articles 89 (1) 3 (a) and 95 (3) of the Act, and that the value of which exceeds the standard prescribed by Presidential Decree and is excluded from the object of non-taxation on capital gains (including land annexed thereto), the Plaintiff constitutes a "high-priced house (including land annexed thereto)" and thus, Articles 89 (1) 3 (a) and 95 (3) of the former Income Tax Act; Article 154 (1) and 160 (1) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 25945, Dec. 30, 2014; hereinafter the same shall apply).

The tax amount to be assessed was assessed.

C. The disposition of this case on the premise that the plaintiff is a non-resident

On September 1, 2017, the Defendant issued a notice of increase in capital gains tax of KRW 22,49,740 for the transfer of this case, deeming that the Plaintiff falls under a non-resident under Article 1-2(1)2 of the former Income Tax Act, and thus, the instant provision cannot be applied to the transfer of this case (hereinafter “instant disposition”).

(d) Procedures of the previous trial; and

On October 30, 2017, the Plaintiff raised an objection against the Defendant on October 30, 2017, but November 23, 2017

The objection was dismissed, and on February 19, 2018, the Tax Tribunal filed an appeal, but on April 20, 2018, the appeal was dismissed.

Facts that have no dispute over recognition, A, 4, 6 through 11, 13 through 17, 20, 25, 26, 27, 29, 33

Evidence Nos. 1 and 2, each entry of evidence Nos. 1 and 2, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

In around 1985, the Plaintiff married to, and entered the Republic of Korea to, the United States, and entered the Republic of Korea. After the occurrence of the IMF in 1999, all families were directors of the Republic of Korea, but all families, such as low school expenses, etc., who were enrolled in an international school for two years since their children were unable to obtain permission to enter a domestic school.

In other words, the Plaintiff left the Republic of Korea in the United States. The Plaintiff was a permanent resident over 50 years of age with his family living together in the United States, and was granted his citizenship as a permanent resident over 25 years of age with his duty to pay taxes for more than 25 years in 2012. The Plaintiff’s application for visa to the Republic of Korea during the course of attending a university in the United States, but the applicant was rejected by a congenital dual nationality holder, but the Non-Party Kim- per cent of the Plaintiff’s father was refused to do so. The Plaintiff’s father Kim- per cent of the Plaintiff’s father was a UC

A large enterprise applied for employment expenses by presenting an annual salary, accommodation, and vehicle support to a person with an employment expense, but his/her father's gender is registered as a male, and thus his/her employment and prohibition of his/her stay in the workplace against a person who has evaded military service

In order to make a gender change, the decision should be made through a trial, and the period of time has been abandoned in the Republic of Korea for a long time, and then the gender of his father in 2014 was modified as a male, but the parent of the person whose military service has been postponed was prohibited from staying in the Republic of Korea for not less than six months. Considering the above circumstances, the Defendant’s deeming the Plaintiff as a non-resident under

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

1) The instant provision on mitigation is a provision on mitigation of taxes (the parties claim that tax exemption is non-taxation, but applicable to mitigation provisions). However, in general, the burden of proof of tax abatement and exemption lies on a taxpayer (see, e.g., Supreme Court Decisions 2002Du7074, Nov. 22, 2002; 2005Du8443, Dec. 23, 2005). Of the instant provision on mitigation, Article 154(1) of the former Enforcement Decree of the Income Tax Act, upon delegation of Article 89(1)3 (a) of the former Income Tax Act, provides that “one house for one household subject to tax abatement and exemption shall be “one household consisting of a resident and his/her spouse (hereinafter “one household”). In order for the Plaintiff to be subject to the instant provision on mitigation, one of the requirements for tax abatement and exemption shall be proved that the Plaintiff constitutes a resident under the former Income Tax Act.

section 3.

2) Therefore, Article 1-2 (1) 1 of the former Income Tax Act provides that "an individual who has a domicile in the Republic of Korea or has a domicile in the Republic of Korea for not less than one year" and Article 1-2 (2) of the same Act provides that "an individual who is not a resident" and Article 1-2 (1) 2 of the same Act delegates the classification of residents and non-residents to Presidential Decree.

First of all, Article 2(1) of the former Enforcement Decree of the Income Tax Act provides that the address shall be determined based on objective facts of living relationship, such as whether a family living together in Korea and a property located in Korea, and Article 2(3) of the former Enforcement Decree of the Income Tax Act provides that when a family living together in Korea has an occupation that requires a continuous residing in Korea for not less than one year, if a family living together in Korea is deemed to continue to reside in Korea for not less than one year in view of his occupation and property status, it shall be deemed to have an address in Korea.

Next, Article 2 (2) of the former Enforcement Decree of the Income Tax Act defines the residence as the "place where there is no general living relationship with the address even if the person resides for a considerable period of time outside the address," and Article 2-2 of the former Enforcement Decree of the Income Tax Act provides that the period of the residence in Korea shall be the resident on the date when the period of the residence in Korea becomes one year, and Article 4 (3) of the former Enforcement Decree of the Income Tax Act provides that "if the period of the residence in Korea exceeds one year during the taxable period of two or more years, the residence in Korea shall be deemed to have

3) However, considering all evidence produced by the Plaintiff in this case, it is difficult to view that the Plaintiff’s domestic address at the time of the transfer of this case (hereinafter “transfer”) or one year or more as an individual, and there is no other evidence to acknowledge it (or, as such, Gap’s 13, 14, 16, 20, 22, 23, 24, 28, 29, 31, 32, 35, 36, and Eul’s 4, 5, and Eul’s 21, and the overall purport of oral argument at the time of the transfer of this case’s nationality, it is reasonable to view that the Plaintiff was born in the Republic of Korea on May 5, 195, and that the Plaintiff was not a resident of the Republic of Korea at the time of the transfer of this case’s nationality, and that the Plaintiff was not a resident of the Republic of Korea until the date of entry into the Republic of Korea of Korea, and that the Plaintiff was not a resident of the Republic of Korea before the date of Korea’s retirement.

3. Conclusion

The plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.