Whether a “one house for one household” under Article 154 of the former Enforcement Decree of the Income Tax Act is entitled to non-taxation benefits as stipulated in Article 154 of the former Enforcement Decree, regardless of whether the domicile or temporary domicile or temporary domicile is identical, where a person aged 30 or older resides together (affirmative)

Article 154(2)1 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 20618, Feb. 22, 2008) only provides that "if the relevant resident is 30 or more years of age, he/she shall be deemed as one household under paragraph (1) if he/she has no spouse, she shall be deemed as one household." Further, Article 154(2) of the Enforcement Decree of the said Act does not provide that "household" shall be deemed as including a family member who lives together with the same address or domicile as the resident. The purport of Article 154(2) of the said Enforcement Decree is that the concept of "household" is based on the premise of husband and wife, so it is impossible for a person who has no spouse to independently maintain his/her livelihood in this case to solve the problem that he/she is unable to benefit from non-taxation for one house for one household. It is difficult to view that a separate independent household cannot be established because his/her domicile or residence is the same, regardless of whether he/she is an independent of the head of 2's domicile or family.

Article 89 (1) 3 of the Income Tax Act, Article 154 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 20618 of Feb. 22, 2008)

Plaintiff

Head of Seocho Tax Office

May 28, 2009

1. The Defendant’s revocation of KRW 117,602,620 on August 1, 2008 against the Plaintiff on August 1, 2006 of the transfer income tax belonging to the year 2006.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Basic factual basis

(a) Details of the disposition;

(1) On November 29, 199, the Plaintiff acquired a new distribution apartment (Dongho-dong 1 omitted) (hereinafter “instant apartment”) from 185,00,000 won, and transferred the instant apartment to 550,000,000 won on May 17, 2006, and reported on May 30, 2007 that the instant apartment constitutes one house for one household and is exempt from taxation.

(2) Meanwhile, the non-party living together at the time of the transfer of the instant apartment from June 200 to the non-party living together with the plaintiff had a new distribution apartment (number 2 omitted) 58-16, Seocho-gu, Seocho-gu, Seoul. Accordingly, on August 1, 2008, the defendant issued the instant disposition that corrected the transfer income tax for the year 2006 to KRW 117,602,620 by deeming that the instant apartment constitutes two houses for one household.

B. Details of income of the Plaintiff and the Nonparty

(1) From February 24, 1998 to 1998, the Plaintiff worked at the Seoul Branch of △△△ Bank, and was 42,527,947 won in 2003, 45,500,547 won in 2004, 50,872,025 won in 2005, and 54,345,298 won in 2006.

(2) The Nonparty, from December 2002, worked as a franchise at the point of △△○○○○ World Korea, was 26,978,922 won in 2005 and 22,182,107 won in 2006.

C. Details of living expenses paid by the Nonparty to the Plaintiff

The Nonparty, like the Plaintiff, resided in the apartment of this case and paid the Plaintiff KRW 344,910 on September 26, 2005 for living expenses, KRW 986,10 on October 30 of the same year, KRW 106,890 on December 23, 12 of the same year, KRW 536,176 on December 23, 2006, KRW 511,484 on January 21, 2006, KRW 3,012,149 on March 11, 201, KRW 106,520 on March 29, 200, KRW 1,249, KRW 750 on April 25, 200 on the same year, and KRW 1,064,750 on May 25, 206 on the same year.

D. The plaintiff and the non-party's living form

(1) The Plaintiff (1968) and the Nonparty (1972) independently subscribed to the health insurance, owned the automobile, and paid the local tax. Moreover, they used each separate credit card with the respective separate credit card.

(2) The instant apartment complex consists of two rooms, one room, one room, and one toilet.

[Reasons for Recognition] Facts without dispute, Gap evidence 1 to 11, Eul evidence 1 to 6, 12 to 14, the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The parties’ assertion and the issues of the instant case

The plaintiff asserts that since the plaintiff and the non-party living a separate occupation and income over 30 years of age, the plaintiff and the non-party living a separate occupation and income, they should be regarded respectively as one independent household pursuant to Article 154 (2) 1 of the Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 20618, Feb. 22, 2008; hereinafter the same) and therefore, the apartment of this case should be exempted from taxation as one house for one household. Accordingly, the defendant asserts that Article 154 (2) 1 of the Enforcement Decree of the Income Tax Act shall apply only to the case where the plaintiff and the non-party live a separate household because they live together with the plaintiff and the non-party living together, and therefore, the apartment of this case constitutes two houses for one household.

Therefore, the issue of this case is how to interpret Article 154 (2) 1 of the Enforcement Decree of the Income Tax Act, and whether the plaintiff and the non-party form one household as a family member living together with the plaintiff.

B. Relevant statutes

[Income Tax]

Article 89 (Non-Taxable Transfer Income Tax) (1) No income tax on capital gains (hereinafter referred to as "capital gains tax") shall be levied on the following incomes:

3. Income accruing from transfer of such one house for one household as prescribed by the Presidential Decree (excluding expensive houses whose prices exceed the standard prescribed by the Presidential Decree) and the appurtenant land within the area calculated by multiplying the area of the land on which the building is built by the ratio as prescribed by the Presidential Decree by the area of the area on which the building is fixed (hereafter in this Article, referred

[Enforcement Decree of the Income Tax]

Article 154 (Scope of One House for One Household)

(1) The term “one house for one household prescribed by the Presidential Decree” in Article 89 (1) 3 of the Act means the case where a resident and his spouse together with the family members living together with the same address or same residence as the resident (hereinafter referred to as “one household”) has one house in Korea as of the date of transfer, and where the retention period of the relevant house is not less than three years (in the case of a house located in the area designated and publicly notified as a planned area for housing site development under Article 3 of the Seoul Special Metropolitan City, the Si, Do, and the Housing Site Development Promotion Act, the retention period of the relevant house is not less than three years and the residing period is not less than two years during the retention period).

(2) In cases falling under any of the following subparagraphs, even if one has no spouse, it shall be considered as one household under the provisions of paragraph (1).

1. Where the relevant resident is 30 or more years old;

(6) The term "family" in paragraph (1) means the lineal ascendants and descendants (including their spouses) and siblings of the resident and his/her spouse, and includes those who temporarily left the original address or dwelling place for school attendance, medical treatment for diseases, situations of work or business.

C. Determination

(1) Interpretation of Article 154(2)1 of the Enforcement Decree of the Income Tax Act

① Article 154(2)1 of the Enforcement Decree of the Income Tax Act only provides that “if the relevant resident is 30 years of age or older, he shall be deemed as one household under paragraph (1) if he does not have a spouse,” and does not provide that “if he lives together with the resident at the same address or domicile as the resident, he shall be deemed as one household, including the family who lives together with the resident.” <2> Article 154(2)2 of the Enforcement Decree of the Income Tax Act provides that the concept of “household” is based on the premise of husband and wife, and thus, he cannot form a household if he does not have a spouse. In this case, even if he can independently live, he could not have a separate independent household because his domicile or domicile is the same, (3) it is difficult to view that a person who has independent ability to live as in this case, such as in the case of this case, is deemed as one household and two households shall be deemed as one independent household regardless of the dissolution of the family community, and rather, it is reasonable to interpret that he does not have an independent address or 14 independent household.

(2) Whether the plaintiff and the non-party living together with the plaintiff

The defendant's assertion that Article 154 (2) 1 of the Enforcement Decree of the Income Tax Act applies only to the case where an independent household is a separately independent household because it is able to independently maintain a living, it means that the living sharing of the same livelihood means a living with the same living cost in light of the daily life. In other words, although the plaintiff and the non-party living together with the plaintiff were living together in the apartment of this case, the plaintiff and the non-party living together with the non-party are recognized as follows: (a) although they were living together in the apartment of this case, they were living in their own independent and stable income; (b) the plaintiff and the non-party had a high-quality income of at least 20 million won (if the subject of taxation is so long as the subject of taxation, the original salary is much more than this case); (c) the plaintiff and the non-party living together with the non-party living together with the plaintiff and the non-party living together with the non-party, even if they were employed in their respective health insurance cards and the non-party living together with this case.

(3) Therefore, the Plaintiff and the Nonparty, at the time of the transfer of the instant apartment, shall be deemed as a separate independent household pursuant to Article 154(2)1 of the Enforcement Decree of the Income Tax Act, and even if the Plaintiff and the Nonparty were to be applied only to a separate household because they are able to maintain their own living independently, they cannot be deemed as a separate household, and thus, the Defendant’s disposition based on a different premise is unlawful.

3. Conclusion

If so, the plaintiff's claim shall be accepted on the grounds of its reasoning, and it is so decided as per Disposition.

Judicial Sub-lease