early 2010 Heavy158 (20 August 20, 2010)

Inasmuch as it is insufficient to recognize that a person has maintained his/her livelihood separately, it constitutes two houses for one household.

Since it is insufficient to recognize that children had maintained their livelihood separately from the Plaintiff at the time of the transfer of the house, the disposition imposing capital gains tax is legitimate because they are deemed to correspond to two houses for one household.

2010Guhap4549 Revocation of Disposition of Imposing capital gains tax

Doz.

OO Head of the tax office

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposition of capital gains tax of KRW 42,307,308 against the Plaintiff on February 12, 2010 is revoked.

1. Details of the disposition;

A. On October 4, 1995, the Plaintiff acquired 374.4 square meters of a factory building with 73-2 square meters of land for factory and 707 square meters of 707 square meters of land and 2 stories of ground (hereinafter referred to as "the above factory site and factory building". Meanwhile, the Plaintiff acquired 81 square meters of the above factory building's second floor office and 81 square meters of the above factory building as a house, and "the instant house" was included in the public service area on November 25, 2008, and received 73,173,760 won of compensation.

B. On June 1, 2009, the Plaintiff determined that the instant house constitutes one house for one household and constitutes a non-taxation object, and reported and paid capital gains tax except the said house portion.

C. The Defendant owned DoD’s 121-2 EE Village 214 and 1602 (hereinafter “the apartment of this case”). However, around November 25, 2008, at the time of the transfer of the instant real estate, the Plaintiff and DoD constituted the same household, and thus, deemed that the Plaintiff constituted two houses for one household. On February 12, 2010, the Defendant issued the instant disposition to rectify and notify the Plaintiff of 42,307,390 capital gains tax for the year 2008.

D. The Plaintiff dissatisfied with the instant disposition and filed a tax appeal on March 30, 2010, but received a decision of dismissal on August 20, 2010, and filed the instant lawsuit.

[Ground of recognition] Facts without dispute, Gap evidence 1, Gap evidence 3-1, 2, Gap evidence 4, Eul evidence 1, 6, 7, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

This case’s disposition is unlawful on the premise that the Plaintiff and DoD constitute two houses for one household, on November 25, 2006, on the ground that they resided in the instant apartment after marriage and lived in an independent household with the Plaintiff separately from the Plaintiff in order to raise funds for beef sales business around April 3, 2008. Since they leased the instant apartment and temporarily resided in the instant house owned by the Plaintiff for the purpose of acquiring alternative housing, they maintained their independent living.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

Comprehensively taking account of the overall purport of the argument in Eul evidence No. 4, it can be acknowledged that Eul had resided in the house of this case until November 25, 2008, when it was transferred to the plaintiff's residence on September 13, 2006, when it was married with HongF on the part of September 13, 2006, and acquired the apartment of this case and relocated to its domicile. Since Eul leased the apartment of this case and transferred the apartment of this case to the above HongF and Lee G, together with the above HongG on April 3, 2008.

Article 89(1)3 of the Income Tax Act and Article 154(1) of the Enforcement Decree of the same Act stipulate that one house for one household which is 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, as of the date of transfer, owns one house in Korea as of the date of transfer. On the other hand, the fact that it constitutes a non-taxable object, which is an exception requirement for such taxable object,

이DD이 이 사건 주택의 양도일 당시 이 사건 주택에 거주하였던 사실은 앞서 본 것과 같으므로, 이DD이 이 사건 주택에 거주할 당시 원고와 별도의 생계를 유지하였는지 여부에 관하여 본다. 갑 5호증의 1 내지 3, 갑 7호증, 갑 10호증의 1, 2의 각 기재에 변론 전체의 취지를 종합하면, 이DD이 2006. 11.경부터 원고가 운영하는 HHHH으로부터 월 850,000원 내지 1,380,000원 정도의 급여를 받은 사실, 이DD이 2008. 12. 24. JJ시 KK면 LL리 264-6에 MMMM이라는 유통업체를 설립한 사실을 인정할 수 있으나, 위 인정사실만으로는 이DD이 이 사건 주택의 양도 당시 원고와 별도로 생계를 유지하고 있었다는 점을 인정하기 부족하고, 달리 이를 인정할 증거가 없다(오히려, 이DD이 이 사건 주택에 거주하면서 별도의 주거비용을 지출하지 않은 것으로 보이는 점, 이 사건 양도 당시 이DD이 별도의 소득이 있었다는 점에 대한 자료를 제출하고 있지 않은 점, 이 사건 부동산이 수용된 이후 이DD은 2009. 6. 8. JJ시 PP읍 QQQ리 336 SSSS아파트 105동 1308호를 임차하고 주소를 이전하였는데, 원고도 2009. 8. 25. 이 사건 주택에서 위 주소지로 주소를 이전한 점 등에 비추어 보면, 원고와 이DD은 이 사건 주택의 양도 당시 생계를 함께하고 있었다고 봄이 상당하다).

Therefore, the instant disposition based on the premise that the Plaintiff constituted two houses for one household at the time of the transfer of the instant house by constituting one household together with the Plaintiff’s DoD is lawful.

3. Conclusion

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