The transfer of this case does not constitute one house for one household.

Inasmuch as the Plaintiff’s child cannot be seen as one independent household, the Plaintiff’s transfer of this case does not constitute one house for one household, and thus, is not subject to non-taxation.

2018Guhap10878 Revocation of Disposition of Imposing capital gains tax

KoreaA

the director of the tax office

November 2018

October 23, 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 KRW 42,757,7201 against the Plaintiff on August 1, 2017 is revoked.

1. Details of the disposition;

A. On December 9, 2016, the Plaintiff transferred 334,000,000 won to ParkB and one other, and filed a transfer income tax report on the non-taxation subject to the transfer of one house for one household. The Plaintiff transferred 334,00,000 won to ParkB and 1 other, but filed a transfer income tax on the non-taxation subject to the transfer of one house.

B. The Defendant conducted a survey of capital gains tax, and determined that “the Plaintiff’s children, at the time of transfer of the instant one house, owned the Plaintiff’s child P& & & 401 square meters (hereinafter “the instant two houses”) and that “the Plaintiff and JeongCC constitutes two houses for one household in the same tax loan” (hereinafter “the instant two houses”). On August 1, 2017, the Defendant denied non-taxation on one house for one household, issued a decision to revise an increase in capital gains tax imposing capital gains tax of KRW 46,48,100 (including additional tax) on the Plaintiff, and notified the Plaintiff on September 12, 2017, by changing the non-reported and excess additional tax on October 30, 2017 to reduce the penalty tax of KRW 3,730,380 by reducing the penalty tax of KRW 30,730,000, and imposed capital gains tax on the Plaintiff by reducing the penalty tax of KRW 4275,770 (hereinafter “the remaining portion”).

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 3, Eul evidence Nos. 1, 2, 4, and 9, the purport of the whole pleadings

2. Determination on the legitimacy of the instant disposition

A. The plaintiff's assertion

Around 2016, Australia earned income of USD 7,540 equivalent to USD 6,51,213 in Australia, and earned income of KRW 8,280,873 in total from KRW 1,769,660 in Korea (average KRW 690,072 in a month). Accordingly, the Plaintiff and Jeong-CC were constituted an independent household with the Plaintiff at the time of the transfer of the instant one house. Accordingly, the instant disposition that deemed the Plaintiff as the same household was unlawful.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) The former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 27829, Feb. 3, 2017; hereinafter the same shall apply)

Considering the legislative intent of Article 154(1) and (2) of the former Enforcement Decree of the Income Tax Act

Myeon, to recognize a child who has not been married under the age of 30 as a separate household with a resident.

at the time of the transfer of the house, the child must have a certain income above the minimum cost of living at the time of the transfer.

In fact, the resident must maintain his/her independent living independently from the resident (Supreme Court).

See Supreme Court Decision 98Du13119 delivered on October 23, 1998, etc.

2) Whether a regularCC has earned income under Article 154(2)4 of the former Income Tax Act

We examine whether or not.

Article 154 (2) 4 of the former Income Tax Act provides that "if there is no spouse, it is possible to maintain an independent livelihood in managing and maintaining the housing or land owned by at least 40/10 of the standard median income under Article 2 (11) of the National Basic Living Security Act, such income shall be deemed one household if it is possible to maintain an independent livelihood." There is no dispute over the fact that 40/10 of the standard median income under Article 2 (11) of the National Basic Living Security Act is KRW 649,932 (hereinafter referred to as "base income of this case") during the period of 40/100 of the standard median income under Article 2 (11) of the National Basic Living Security Act. In addition to the health stand for whether the income of the regularCC is above the standard income of this case, the evidence submitted by the Plaintiff cannot be deemed to have obtained more than the standard income of this case at the time of transferring the housing of this case.

A) From March 2016 to September 2016, 2016, JeongCC obtained income from Australia through Balking. However, USD 4,255.2 was deposited in the account of fixedCC for the said period. JeongCC obtained income of KRW 1,769,660 from December 2016 to December 2016. The total amount of the above income was calculated as USD 858.93 won per USD 1,52,073 merely because the monthly average income of Australia was not 452,073 won.

B) The Plaintiff asserted that the income from Australia was USD 7,540.2, 00,000, excluding USD 1,900, and the remaining USD 7,540.2, but there is no ground to view that the remaining amount, excluding USD 1,900, out of the cash deposited into the dueCC’s account, is all the income earned from Australia.

3) Even if the NewCC has earned income pursuant to Article 154(2)4 of the former Income Tax Act, in order to recognize it as a separate household from a resident, it is necessary to maintain a separate living independently from a resident, in addition to the income earned pursuant to Article 154(2)4 of the former Income Tax Act. In addition to the foregoing evidence, if we gather together with the following circumstances revealed by the purport of the entire pleadings, it cannot be deemed that the regularCC had actually maintained a living independent of the Plaintiff at the time of transferring the instant single house.

A) FullCC did not have a certain occupation as 23 years old, Germany at the time of transfer of the instant one house.

B) The monthly average income at the time of the instant single house transfer by JeongCC is approximately KRW 452,073 as seen earlier.

C) At the time of the instant transfer of the instant one house, JeongCC does not seem to have any property other than the instant two houses donated by JeongD on November 1, 2016 (her husband) at the time of the instant transfer of the instant one house.

D) In light of the currentCC’s account, the Plaintiff received money from the Plaintiff and paid tuition fees for a private teaching institute, and appears to have lived with the Plaintiff as the same living capital.

4) Therefore, the Plaintiff’s assertion is not accepted, since it cannot be deemed that staticCC constitutes one independent household with the Plaintiff at the time of transferring the instant single house.

3. Conclusion

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

(c)

1) The amount of capital gains tax originally notified to the Plaintiff is KRW 46,488,100, and the remaining amount of capital gains tax after the decision of correction of reduction as of October 30, 2017 is KRW 42,757,720, and thus, the Plaintiff is entitled to seek such amount.