early 2004 Heavy0777 (2004.06.07)

Whether it is applied to one house-free one household household under work circumstances to the circumstances of business of self-employed persons;

The circumstances of business refer to the case where the economic calculation and legal rights and duties belong to the principal, and it is reasonable to view that the circumstances of business refer to the case where the person to whom the property belongs performs work in return for economic compensation such as wages, and that the change in the location of the business place of the self

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 1,327,500 against the Plaintiff on August 4, 2003 shall be revoked.

1. Details of the disposition;

A. On September 25, 2001, the Plaintiff acquired ○○-dong, Seoul Special Metropolitan City 1694, 102 Dong 801 (hereinafter “the apartment of this case”) and transferred it on April 15, 2003, and thereafter, inasmuch as ○○○, the husband of her husband, transferred her husband, from Seoul to Ansan, to the Defendant, and had no choice but to inevitably move her residence, this constitutes non-taxation on the ground that it constitutes “cases of transfer to work” under Article 89 of the former Income Tax Act (amended by Act No. 6852 of Dec. 30, 2002; hereinafter “Act”) and Article 154(1)3 of the Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 18044 of Jun. 30, 2003; hereinafter “Enforcement Decree”).

B. On August 4, 2003, the Defendant rendered the instant disposition imposing capital gains tax of KRW 1,327,500 on the ground that the Plaintiff’s selling of the apartment of this case would result from the circumstances of business not under any circumstances of business.

[Ground for recognition] Unsatisfy

2. The legality of disposition.

A. The plaintiff's principal

The Plaintiff asserts that the purpose of Article 89 of the Act and Article 154 of the Enforcement Decree of the Act lies in reducing the tax burden following the transfer of residence, which is intended to correct the inconvenience or misappropriation caused by isolation between the workplace and the place of residence, unless the transfer of real estate is done for the purpose of speculation, etc., and therefore, the Plaintiff asserts that the transfer of apartment house of this case, which is a self-employed, should also be applied to the transfer of the Plaintiff’s husband’s place of work.

(b) Related statutes;

C. Determination

On the other hand, Article 71 of the former Enforcement Rule provides that capital gains tax shall not be imposed on the move of a house to "school attendance, medical care for diseases, situations of work or business" even if the period of possession is less than three years, considering that the period of possession falls under the special case of a house for one household. However, by the revision of March 30, 1996, "any circumstances in the business" are deleted and defined as "any circumstances in the workplace, such as the change of work place or the transfer of work place," and "any situation in the workplace" are limited to "any situation in the workplace, such as the change of work place or the transfer of work place," so it can be deemed that the business of a self-employed is included in a broad meaning, but the former refers to the case where the economic calculation and legal rights and duties are actually attributed to the principal, and the latter refers to the case where the latter works are paid for economic compensation, such as wages, and thus, the plaintiff's argument that the change of work place is not legitimate in light of the principle of fair taxation.

3. Conclusion

Thus, the plaintiff's claim of this case is dismissed as it is without merit.