early 209west3666 (2010.02.04)

Whether an independent household constitutes an independent household

It is difficult to view that his/her married, who is a member of a household, has actually resided independently in his/her household because he/she had resided independently, considering the residential environment, the result of inquiry into the Internet home, etc.

The contents of the decision shall be the same as attached.

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 237,749,720 for the Plaintiff on September 1, 2009 shall be revoked.

1. Details of the disposition;

A. On October 30, 2002, the Plaintiff acquired ○○○○○○-dong 175-31 site and its ground (hereinafter collectively referred to as “the instant real estate”) on November 1, 2004, acquired ○○○○-dong 270-17 No. 2 (hereinafter referred to as “the instant house”) and donated the instant house to EA (the Plaintiff’s wife’s son) on March 28, 2007.

B. On November 15, 2007, the Plaintiff transferred the instant real estate to △△ Corporation, and deemed that the instant real estate satisfies the non-taxation requirement as one house for one household, and paid KRW 2,99,1340,000,000 for transfer income tax on the high-priced part of more than 600 million won. The Defendant did not have a certain income source, and it is difficult to view that the instant real estate was transferred to the instant housing as a transfer of two houses for one household, applying the transfer income tax rate of 50% to the Plaintiff on September 1, 2009, by deeming that the instant real estate was transferred to the instant housing as a transfer of two houses for one household (hereinafter referred to as the “disposition of this case”).

다. 원고는 이 사건 처분에 대하여 2009. 9. 30. 조세심판원에 심판청구를 하였는데, 조세심판원에서는 이AA이 이 사건 주택에서 실지로 거주하였는지 여부와 원고 세대 와 독립된 생계를 유지하였는지 여부에 대하여 재조사를 한 후 그 결과에 따라 과세표 준 및 세액을 경정하라고 결정하였고, 피고는 이에 따라 재조사한 결과 이AA이 ◇◇콤에 근무한 사실이 확인되어 소득원이 불분명한 점은 해결되었으나, 이 사건 주택에서 실제 거주한 것으로는 볼 수 없다는 이유로 2010. 3. 18. 이 사건 처분이 정당하다고 결정하여 원고에게 고지하였다.

[Ground for Recognition] Unsatisfy, Gap evidence 1 to 3 (including paper numbers; hereinafter the same shall apply), Eul

set forth in No. 4, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

ThisA had resided in the instant real estate and had been employed on or around June 2006, and had been able to independently reside in the instant housing from September 21, 2006. The Plaintiff’s wife KimB requested that the leastCC, who had been well aware of the instant real estate, resided in the instant housing with thisA and participated in this A, to look at at 2,50,000 won per month, and the maximumCC was able to pay 2,50,000 won per month. The Plaintiff had resided in the instant housing along with this two children. Accordingly, the Plaintiff satisfied the requirements for non-taxation on capital gains tax of one household at the time of transfer of the instant real estate, and the instant disposition on a different premise is unlawful.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

At the time of transfer of the instant real estate, the key issue of the instant case is whether thisA had resided in the instant house and constitutes a separate household with the Plaintiff, or whether it had resided with the Plaintiff and constituted the same household. Therefore, this issue is examined.

The evidence that thisA had been residing in the housing of this case has the respective descriptions and images of Gap evidence Nos. 13, 14, 18 through 22, and 29. However, in light of the following circumstances, each of the above evidence and evidence Nos. 5 and 6, which are acknowledged by the overall purport of the statements and arguments as seen earlier, it is insufficient to acknowledge them only with the above evidence, and there is no other evidence to acknowledge them.

First, the instant housing consists of two rooms, living rooms, kitchens, and toilets, and one room among them is used by the largestCC and two children (referred to as the children of the first and fourth grade of the high school, and the children of the fifth grade of the elementary school), and the rest of one room was used by the LeeA, and the living room, bank, toilet, etc. were jointly used by the LeeA. This seems to have been very inconvenience to the maximumCC family, and the room alleged to be used by the LeeA is also very difficult to this part of the wall, and it is difficult to believe that thisA had resided independently in this place because it was located far away from the wall of the Defendant, the remote area, and some remote areas.

Second, as a result of the inquiry into the Internet Acopia of a computer installed in the room in which thisA is alleged to be used, it was revealed that the primary user was the largestCC and its children, not thisA, and in doing so, it is difficult to believe that thisA has been residing in the housing of this case.

Third, according to the evidence evidence No. 22, it is deemed that thisA was mainly boarding the subway from September 2008 to December of the same year, but according to the evidence No. 5 and No. 6, the above period is the time when the plaintiff and his wife resideed in 270-9 Do 270-9 Do 101, Dong 1, 2701, the above evidence alone is impossible to confirm whether thisA has resided in the house of this case for the above period or have resided with the plaintiff.

Fourth, according to the statements in Gap evidence Nos. 14, 20, and 21, the move-in report was made on September 21, 2006 to the housing of this case, and thereafter, the address of this case is deemed to have been stated in the written application for the members of the health club or the resume, but it was recognized that the plaintiff had been made a move-in report in consideration of the transfer income tax prior to the donation of the housing of this case, and this was highly likely to have been entered in the above documents according to the resident registration address, and it is difficult to view that the above evidence alone had been actually residing in the housing of this case.

Therefore, since this cannot be deemed as constituting a separate household with the Plaintiff at the time of transferring the instant real estate, the instant real estate transfer cannot be deemed as a transfer of one house for one household subject to non-taxation, and the instant disposition made to the same purport 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.