Whether non-taxable one house is transferred to one household;

The transferor's transfer of one house does not constitute a transfer of one house for one household which is non-taxable, in case where children aged 30 or older who share the same livelihood with the transferor possess one house, and it does not constitute a transfer of one house for one household which is non-taxable.

Article 89 of the Income Tax Act

1. The plaintiff's appeal is dismissed.

2. Litigation costs shall be borne by the plaintiff.

The Defendant’s disposition of imposition of KRW 10,273,020 against the Plaintiff on January 13, 2006 shall be revoked.

1. Details of the disposition;

A. On February 1, 1991, the Plaintiff acquired ○○○-gu ○○○○○○-dong, 1536-12, and 102 above 4 and 102 above 3 lots of ground (hereinafter referred to as “○○ apartment”) but transferred it to ○○○ (the birth date of November 22, 1973) on June 14, 2005.

B. On January 16, 198, the Plaintiff acquired ○○○-dong 1808 ○○○○-dong 103 401 dong 1808 (hereinafter “the apartment of this case”) but transferred the apartment of this case to ○○○ on June 20, 2005 (hereinafter “the transfer of this case”). The transfer of this case was determined to fall under the transfer of one house for one household subject to non-taxation under Article 89 subparag. 3 of the former Income Tax Act (amended by Act No. 7837 of Dec. 31, 2005; hereinafter the same), and did not make a preliminary return on the transfer.

C. On the other hand, around May 10, 201, the Plaintiff moved into ○○○○○○dong 1336 205, 000, Seoul around May 10, 2001, and was living together with the wife from around that time to the time of the transfer of the instant case, ○○, ○○○○, and ○○○○○○○○○○○, a self-governing apartment, and was living together with the Defendant. At the time of the instant transfer, ○○ was 31 years of age.

D. However, as of the transfer date of this case, the defendant, as well as the apartment of this case, owned ○ apartment by the plaintiff, who is the plaintiff's son, and the Dong is the same household members living together with the plaintiff. Thus, the transfer of this case does not constitute the transfer of one house for one household which is non-taxable under Article 89 subparagraph 3 of the former Income Tax Act. On January 13, 2006, the defendant issued the disposition of this case imposing and notifying 10,273,020 won for the transfer income tax of 205 to the plaintiff.

[Ground of recognition] Facts without dispute, Gap1-1, Gap2, Gap4, Gap1, Eul1, Eul 1, Eul 2, and Eul 3, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Article 154 (2) 1 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 19254, Dec. 31, 2005; hereinafter the same) provides that "if the resident is at least 30 years of age, he/she shall be deemed as one household even if he/she has no spouse," and does not have any provision as to the requirement. In a separate interpretation, if the above provision applies only to a case where the resident does not achieve an independent household or live together with a father, the unmarried person who is at least 40 years of age should not own the house in order to reduce the tax of the father if he/she lives together with the father, and it is reasonable to regard the person who is at least 30 years of age as an independent household regardless of marriage from an economic and social point of view to view it as an exception to Article 154 (2) 1 of the former Enforcement Decree of the Income Tax Act as an exception to Article 154 (1) of the former Enforcement Decree of the Income Tax Act, regardless of whether he/she shares with his/her family.

B. Relevant statutes

【former Income Tax Act (amended by Act No. 7837 of Dec. 31, 2005)】

Article 89 (Non-Taxable Transfer Income Tax) No income tax shall be levied on any of the following incomes (hereinafter referred to as “transfer income tax”):

3. Income accruing from a transfer of one house for one household as prescribed by the Presidential Decree (excluding expensive houses whose prices exceed the standard prescribed by the Presidential Decree) and the appurtenant land within the area calculated by multiplying the area of land on which the building is built by the ratio as prescribed by the Presidential Decree by area;

【former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 19254 of Dec. 31, 2005)】

① 법 제89조 제3호에서 "대통령령이 정하는 1세대 1주택"이라 함은 거주자 및 그 배우자가 그들과 동일한 주소 또는 거소에서 생계를 같이하는 가족과 함께 구성하는 1세대(이하 "1세대"라 한다)가 양도일 현재 국내에 1주택을 보유하고 있는 경우로서 당해 주택의 보유기간이 3년 이상인 것(서울특별시, 과천시 및 ⌈택지개발촉진법⌋ 제3조의 규정에 의하여 택지개발예정지구로 지정・고시된 분당・일산・평촌・산본・중동 신도시지역에 소재하는 주택의 경우에는 당해 주택의 보유기간이 3년 이상이고 그 보유기간 중 거주기간이 2년 이상인 것)을 말한다. 다만, 1세대가 양도일 현재 국내에 1주택을 보유하고 있는 경우로서 다음 각호의 1에 해당하는 경우에는 그 보유기간 및 거주기간의 제한을 받지 아니한다(각호 생략).

(2) In case where falling under one of the following subparagraphs, it shall be considered to be one household under paragraph (1), even if one has no spouse:

1. Where the relevant resident is 30 or more years old, or where he has the income as prescribed in Article 4 of the Act;

(6) The term "family" in paragraph (1) means the lineal ascendants and descendants (including their spouses) and siblings of the resident and his/her spouse, and includes those who temporarily left the original address or dwelling place for school attendance, medical treatment, situations of work or business.

C. Determination

(1) As seen in relevant Acts and subordinate statutes, Article 89 subparagraph 3 of the former Income Tax Act provides that income from the transfer of one house by one household as prescribed by the Presidential Decree shall not be imposed, and Article 154 (1) of the former Enforcement Decree of the Income Tax Act provides that "one household consisting of the family members who live together with the family members who live together with the family members who live together with the same address or same place of residence (hereinafter referred to as "one household")." Thus, one household mentioned in this provision must be comprised of at least the resident and his spouse. It is intended to prevent the avoidance of capital gains tax by being subject to non-taxation for one household in a manner that constitutes one household in the form that constitutes one household through the dispersion of resident registration. On the other, Article 154 (2) 1 of the former Enforcement Decree of the Income Tax Act provides that "if the resident is aged 30 or older or there is income under Article 4 of the Income Tax Act without the spouse, it shall be deemed that there is little possibility that one household constitutes a single-household type of tax without such independent type of spouse.

Therefore, the meaning of Article 154 (2) 1 of the former Enforcement Decree of the Income Tax Act is that where the relevant resident’s age is not less than 30 years or there is income prescribed in Article 4 of the former Income Tax Act, it shall be deemed that he can independently maintain his livelihood, and even if he does not have a spouse separately dealing with an independent household, it shall be deemed that he recognizes it as one household under Article 154 (1) of the former Enforcement Decree of the Income Tax Act even if he does not have a spouse. Thus, even if a person is 30 years or older, if he lives together with his family, it shall not be deemed that he forms one household independently (Supreme Court Decision 98Du1319 delivered on October

(2) However, at the time of the transfer of this case, ○○○, together with the Plaintiff, was living together with the said ○○ apartment 9 Dong 205, and the fact that the Plaintiff owned the said ○ apartment was as seen above, and thus, the Plaintiff and ○○○ owned two houses for one household by organizing one household, not a separate household, at the time of the transfer of this case. Accordingly, the Defendant’s disposition that deemed that the transfer of this case did not constitute a transfer of one house for one household subject to non-taxation under Article 89 subparag. 3 of the former Income Tax Act is lawful.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.