Cho Jae-chul2010 Before 1741 (Law No. 29, 2010)

No parent may be deemed to have maintained an independent household;

The mother's 88 years old at the time of the transfer of the house, and there was no particular import, and the mother's her son maintained an independent household in view of the fact that the hospital and the pharmacy in the vicinity of the Plaintiff's house were used, etc. The mother's her son cannot be recognized to have transferred the house within 2 years from the time of the combination of the households, and the disposition imposed on him is legitimate.

2010Guhap4294 Revocation of Disposition of Imposing capital gains tax

XX

O Head of tax office

May 4, 2011

June 1, 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 137,030,000 against the Plaintiff on January 2, 2010 is revoked.

1. Details of the disposition;

A. On April 20, 1983, the Plaintiff acquired Daejeon Dong-dong 668 790 m2 and 59.5 m2 on its ground, and resided around November 19, 1987 from around that time until November 19, 1987. On November 21, 2007, the Plaintiff transferred the instant house to 86 billion won, and voluntarily paid the Defendant KRW 19,649,070 on the ground that the transfer of the instant house constitutes the transfer of a high-priced house for one household.

B. However, at the time of the transfer of the instant house, the Defendant owned another house (the Plaintiff’s mother, who is in the same household with the Plaintiff at the time of the transfer of the instant house) (the Plaintiff’s share 93/393 square meters in Daejeon-dong 669-1 river 393 square meters, and the share 327/354 square meters in the said 669-2 river and 63 square meters in both above ground buildings; hereinafter referred to as “69-2 house”) and thus constitutes a transfer of two houses by one household, and deemed that the Plaintiff did not meet the non-taxation requirement for one house per household, and accordingly, issued a disposition of imposition of capital gains tax of 137,030,000 won for the year 207 against the Plaintiff (hereinafter “instant disposition”).

C. On February 10, 2010, the Plaintiff dissatisfied with the instant disposition, brought an appeal with the Tax Tribunal on February 10, 2010, and the Tax Tribunal dismissed it.

[Ground of recognition] Facts without dispute, Gap evidence 7, Eul evidence 1 and 2 (including paper numbers), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The instant housing and the instant 669-2 ground housing have been actually owned by Plaintiff 1, 200, and 669-2, respectively, for three years or more, so the Plaintiff constitutes a transfer of one house for one household at the time of transfer of the instant housing and thus is exempt from taxation under Article 89 of the Income Tax

2) Even if the Plaintiff and the Plaintiff were to be one household, the Plaintiff became to possess two houses for one household by combining the households for the purpose of living and supporting XX, and the Plaintiff transferred the instant house within two years from March 2006 to March 2, 2006, and thus, the Plaintiff should be exempted from taxation pursuant to Article 89 of the Income Tax Act and Article 155(4) of the Enforcement Decree of the Income Tax Act.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

1) According to the provisions of Article 89(1)3 of the Income Tax Act and Article 154(1) and (6) of the Enforcement Decree of the Income Tax Act, one household means one household in which the resident and his spouse make a living together with the family members who share the same address or same place of residence. The family refers to the lineal ascendants and descendants (including their spouses) and siblings of the resident and their spouse, and those who temporarily left the original domicile or temporary domicile for attending school, medical treatment of diseases, work or business conditions among the household members are included in the family members. However, in order to view those who do not have a spouse as a lineal ascendant of the resident as an independent one household, the above provisions and the provisions of Article 154(2)3 of the Enforcement Decree of the Income Tax Act include the lineal ascendant of the resident, etc. who are not the spouse at least the minimum cost of living under the provisions of Article 2(6) of the National Basic Living Security Act, and the said lineal ascendant, etc. need to maintain their independent living independently while managing and maintaining the house or land.

On the other hand, non-taxation generally excludes specific objects of taxation from the necessity of tax policy, which is the exception and special facts of the taxpayer, so the burden of proof for non-taxation requirement is the taxpayer who asserts the cause of non-taxation.

2) We examine the instant case on the premise of the above legal doctrine.

A) First of all, according to the statement of this case as to whether this household had been maintained separately from the Plaintiff at the time of the transfer of this case’s house, it can be acknowledged that the address of this case’s resident registration was indicated as 69-2 above at the time of the transfer of this case’s house. However, in light of the following circumstances acknowledged by the results of fact-finding on the Daejeon branch of the National Health Insurance Corporation and the purport of the entire pleadings, i.e., the Plaintiff’s testimony from 60th of August 7, 2004 to 60th of April 2005, 2000, the Plaintiff’s testimony was not stated as 9-2 from 60th of May 7, 2004 to 60th of April 205, 2000 to 1st of May 29, 2000, the Plaintiff’s 200-O apartment house was located separately from the Plaintiff’s residence of this case’s 660th of May 29, 200005.

Therefore, the Plaintiff’s first assertion, which is premised on the fact that this XX maintains an independent household separately from the Plaintiff at the time of the transfer of the instant house, is without merit.

B) Next, as to whether the Plaintiff came to own two houses for one household by combining the households in order to care for living together with the other household, and whether the Plaintiff transferred the instant house within 2 years from March 2006 to 2, 2006, even if the Plaintiff, at that time, possessed two houses for one household by combining the households in order to care for living together with the other household, the Plaintiff must prove the fact that 2 years have not elapsed from the date of transfer of the instant house. As described in the foregoing paragraph (a) above, the Plaintiff signed and submitted to the Defendant for on-the-spot confirmation as of November 25, 2009, and submitted for on-the-spot verification, Y used a hospital or pharmacy located in and around the instant house, which was located in and around the Plaintiff’s office, and around March 2005, the Plaintiff did not have any evidence to acknowledge the Plaintiff’s testimony including the witness number 10 to 205, 160, 160, and 205.

Therefore, the plaintiff's second assertion on the premise that the plaintiff transferred the house of this case within 2 years from the time of the combination of these members and households is without merit.