early 209west3377 ( December 28, 2009)

Each land shall be deemed not to fall under the land annexed to one house for one household, and the disposition imposed shall be lawful.

It is difficult to recognize that the family at the time of accommodation of each land and each house is "family living together with the same address or residence", and even if each house was located in the same fence, it cannot be viewed as a single house provided as a unit of a residential life in light of the economic usage as a whole.

2010Gudan424 Revocation of Disposition of Imposing capital gains tax

Dok-si

O Head of tax office

March 25, 2011

May 13, 2011

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 326,39,880 against the Plaintiff on June 1, 2009 shall be revoked.

1. Details of the disposition;

A. On March 10, 1997, the Plaintiff acquired the same site 51 m2 (hereinafter referred to as “1 land”), 511-5 m2 (hereinafter referred to as “2 of this case”), 511-3 m28 m28 m2 of the same site, and 511-4 m2 of the same site (hereinafter referred to as “each land of this case”) on 1997. The Plaintiff acquired 80.62 m2 of the housing on 1993 m2 of this case’s land and 20.7 m2 of this case’s land, each of which belongs to the Plaintiff and 30.6 m2 of the above land, each of which belongs to the Plaintiff and 20.7 m2 of this case’s land, each of which belongs to 30.6 m2, 1993 m21,2196 m216.6 m21,2196.

B. On June 1, 2009, the Defendant issued the instant disposition imposing a correction and notice of KRW 326,39,880 on the Plaintiff on the premise that each of the instant land does not correspond to the same household in which the Plaintiff and the Yong-Nam DaD and the next South Seoul CE live together at the time of the transfer date of each of the instant land, and that each of the instant land of this case was not considered as the land owned by one household and thus, it was not considered as the land owned by one household for one household (the total amount of the final tax was KRW 698,071,420).

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, Eul evidence 1 and 2 (including above numbers), the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

At the time of the expropriation of each of the instant land and each of the instant housing units, the Plaintiff, the South-Namnam HighD, and the families of the Southern High EE (hereinafter “Plaintiffs et al.”) had no particular income from eD, the Plaintiff’s pension income, the rent income from the instant land, the Plaintiff’s bank loans, etc., and each of the instant housing constitutes one house located within one fence, and thus, is incidental to “one house for one household” under Article 89(1)3 of the Income Tax Act, which is exempt from capital gains tax under the Income Tax Act. However, each of the instant housing and each of the instant land, which are the land appurtenant to the instant housing, should be imposed capital gains tax after calculating capital gains pursuant to Article 95(3) of the same Act and Article 160(1) of the Enforcement Decree of the same Act. On the other premise, the Defendant’s disposition on the other premise is unlawful.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

(1) Whether a person is a household

First, according to the provisions of Article 89 (1) 3 of the Income Tax Act, and Article 154 (1) and (6) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 20618 of Feb. 22, 2008), one household in one house for one household which is subject to non-taxation of capital gains tax refers to a household in which the resident and his spouse make a living together with the family members who make their living at the same address or same place of residence, and the family refers to a lineal ascendant and descendant (including their spouse) and sibling of the resident and his spouse, and includes a person who temporarily left the original address or residence for school attendance and disease medical treatment, situations of work or business.

In this context, "family living together with the same address or same place of residence" refers to a family member who lives in the same family register or who lives in the same place of residence with the same family register under the resident registration card without the need to share the same household under the resident registration card (see, e.g., Supreme Court Decision 85Nu194, Nov. 26, 1985), and there is no dispute between the parties, or evidence of No. 6-1 through 5, No. 4-1 through 4, No. 5-2, No. 5-2, No. 6-1 through No. 6-4, No. 12-9, No. 13-1 through 5, No. 14-2, and No. 1, No. 14-1, and No. 2, and witness Kim FF testimony's testimony, the evidence submitted by the plaintiff alone cannot be recognized as a "family living together with the same address or other same unit of residence at the time of expropriation of the plaintiff at each of this case, etc."

① At the time of the acceptance of each of the instant land and each of the instant housing units, the Plaintiff’s headDD, the Seoul Highnam High EE, and the Samnam High GG had a lineal descendant as of 43 years of age, 40 years of age, and 36 years of age, respectively, and the late DDR couple and the late EM couple were registered as a resident in the instant land first, and the Plaintiff’s husband and wife and the late GG couple were registered as a resident in the instant land second.

② From September 15, 2004 to September 15, 2006, HuLL PC had been operated with Kim H, his spouse, and had been operated with "LLLL PC located in JJ-dong 348-1 located in Seoul, JJ-dong 348-1. From September 3, 2002 to April 10, 2003, HuM-dong 130-12 located and operated the construction business. The comprehensive income tax was received from 30,000,000 won from 20,000,000 won to 30,000,000 won from 1,00,000 won from 2,00,000 won from 3,00,000 won from 1,00,000 won from 2,00,000 won from 1,20,000 won from 3,00,000 won from 1,92.

③ 심EE는 1994년부터 1999년까지 주식회사 PPPPP에서, 2000년부터 2001년까지 주식회사 QQQQQ에서, 2005년부터 2007년까지 RRRRR 주식회사 및 SSSS 주식회사에서 근로자로 근무한 바 있고, 그의 배우자 김TT는 원고의 처가 종전에 운영하던 UUUU이란 소매점(식품, 잡화)으로서 이 사건 제1 토지상의 주택에 위치한 상점을 2001. 7. 10.부터 2007. 6. 30.까지 운영한 바 있다.

(4) The Samnam HighG continued to work from around 1996 to work in the Seoul Metro, and had earned income.

(2) Whether a person is a house

Since the Plaintiff asserts that each of the instant houses is located within a fence and constitutes one house, it is necessary to determine whether two or more houses constitutes one house for one household subject to non-taxation of capital gains tax, depending on whether each of the instant houses is provided as a single house for a single house under the economic usage as a whole, according to the economic usage as a whole.

Considering the following circumstances, even if there is no dispute between the parties, or if there is evidence Nos. 4-1, 2, 7-1, 7-2, 7-1, 13, 12-13, 17 of the evidence No. 12-2 of the evidence No. 7, and Eul’s testimony of part of the witness KimF, prior to the witness KimF’s testimony, the facts and the purport of the entire pleadings are added, even if each of the instant houses was located in a fence, it cannot be deemed as a single house provided as a unit of residential life when considering the economic usage as a whole

① At the time of the acceptance of each of the instant lands and each of the instant lands, the third floor was living by the Plaintiff’s husband and wife, and the lateG couple. However, the first floor was used by KimF as a pastor by leasing it and paying for weddings. The second floor was Nonparty Kim FF, YangV, YangV, and the rooftop was respectively leased and residing by the Plaintiff’s family members, or by other persons, who are not the Plaintiff’s family members or the members of the Samnam HighG.

② Inasmuch as not only the above three floors but also the second floor had the structure and facilities capable of operating an independent residential life, and the degree of being the object of independent transactions in light of social norms, it may be deemed that the housing on the second floor of this case was a real collective housing.

③ At the time of expropriation of each of the instant lands and each of the instant houses, DD was a lessor of the instant land No. 2, who received rent of at least KRW 2 million every month from KimF, etc. as the lessor of the instant land.

(3) Sub-determination

Therefore, the plaintiff's above arguments are without merit, and the disposition of this case is legitimate.

3. Conclusion

Thus, the plaintiff's claim of this case is dismissed.