208Gudan18048 Revocation of Disposition of Imposing capital gains tax

○ ○

The Director of the Pacific District Office

March 13, 2009

April 10, 2009

1. The part of revocation of the disposition imposing resident tax among the lawsuit of this case shall be dismissed.

2. The plaintiff's claim for cancellation of the capital gains tax imposition disposition is dismissed.

3. Litigation costs shall be borne by the Plaintiff.

The Defendant’s disposition of imposition of capital gains tax of 71, 118, 880 won and resident tax of 7, 111, and 880 won against the Plaintiff on May 6, 2008 is revoked.

1. Details of the disposition;

The following facts may be acknowledged in full view of the purport of the whole pleadings in the statement No. 2-1, No. 2, No. 4-1, No. 4-2, and No. 1.

A. On January 28, 200, the Plaintiff acquired 4 main apartment ○○ Dong-dong (hereinafter referred to as “instant housing”) on January 28, 200 and transferred on August 12, 2003, but did not report and pay capital gains tax on the ground that the transfer of the instant housing is one house for one household and is exempt from capital gains tax.

B. At the time of the transfer of the instant house, the Defendant: (a) calculated gains on transfer based on the actual transaction price (transfer price of KRW 295,00,000, acquisition price of KRW 110,000, KRW 00, KRW 000) on the ground that the Plaintiff’s wife, ○○, at the time of the transfer of the instant house, owned KRW 353, 00, 353, Yeonsu-gu, Incheon; and (b) notified the Plaintiff of KRW 71,118,880 on May 6, 2008 on the ground that the transfer of the instant house does not constitute one house for one household; and (c) notified the Plaintiff of the imposition of capital gains tax of KRW 71,118,880 on the transfer income tax reverted to the Plaintiff on May 6, 2008.

2. The plaintiff's assertion

From 196 to 10 years from 1996, the Plaintiff was in fact divorced with ○○, a legal wife, and ○○○, making a different living with 10 or more years of residence and her actual divorce status. The Plaintiff asserted that the Plaintiff’s disposal of the instant house should be made by including de facto divorce in determining 1 house for one household; the Plaintiff should be recognized as a separate household even in cases of de facto divorce in light of equity in taxation related to 1 household non-taxation system and the unity of its provisions; the divorce under the substance over form principle should also be considered as divorce; based on the premise that the Plaintiff constitutes the same household as ○○○, which is in de facto divorce status, based on the premise that the Plaintiff constitutes the same household as 1 house for one household; and thus, it is unlawful for the Plaintiff to consider the transfer of the instant house as 2 house for one household; and to impose the income tax and resident tax on the said household.

3. Determination as to whether a lawsuit on the revocation of disposition imposing resident tax is legitimate

According to Article 20 (1) of the Administrative Litigation Act, a revocation lawsuit shall be filed within 90 days from the date on which the plaintiff becomes aware of the disposition, etc., and in full view of the purport of the whole pleadings as stated in subparagraph 4-2 of the evidence No. 4-2, the plaintiff is found to have received a delivery of the written notice of imposition and collection of resident tax from the defendant around May 6, 2008 when the above disposition of imposition of resident tax was taken, and the plaintiff filed the lawsuit in this case on December 26, 2008 when the period exceeds 90 days thereafter is obvious in the record. Thus, the part of the disposition of revocation of the imposition of resident tax in this case is unlawful, since it was filed with the lapse

4. The legality of imposition disposition of capital gains tax.

A. Relevant statutes

As shown in the attached Form.

B. Determination

On the other hand, the principle of no taxation without the law, or the principle of no taxation without the law, and the interpretation of tax laws is interpreted as a law, barring any special circumstance, barring any special circumstance, and it is not allowed to expand or analogically interpret the tax laws and regulations without a legitimate reason. In particular, it is also appropriate to strictly interpret the provision that is clearly considered as a preferential provision among the requirements for tax reduction and exemption in accordance with the principle of tax fairness (see Supreme Court Decision 2001Du731, Apr. 12, 2002, etc.).

Article 154(1) of the Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 18127, Nov. 20, 2003) provides that "in the case of one house for one household, where the resident and his/her spouse together with the family members who live together at the same address or same place of residence, has one house in Korea as of the date of transfer" where the resident and his/her spouse possess one house at the same place of residence. Thus, the resident is deemed to form one household together with his/her spouse in order to form one household with the resident and the spouse, and thus, the resident’s family constitutes one household with the same address or same place of residence with the resident or his/her spouse, and thus, the resident did not have any restrictions on the formation of one household with the resident’s spouse and his/her spouse as at the time of divorce, and the spouse of the resident’s spouse constitutes one house for the same purpose as at the time of this case’s transfer by ○○ apartment, not at the time of this case’s death.

The above disposition imposing capital gains tax cannot be deemed as a violation of the principle or the principle of substantial taxation. Therefore, the above disposition imposing capital gains tax is lawful, which regarded the original order as a second owner of two houses by one household for the same reason.

5. Conclusion

Therefore, since the part of revocation of disposition of imposition of resident tax among the lawsuit of this case is unlawful, the plaintiff's claim for revocation of disposition of imposition of capital gains tax is dismissed as it is without merit.

Judges Ham-type

Related statutes

Income Tax Act (amended by Act No. 7837 of Dec. 31, 2005)

Article 89 (Non-Taxable Transfer Income)

The following incomes shall be exempted from the income tax on capital gains (hereinafter referred to as “capital gains tax”):

3. Income accruing from a transfer of such one house for one household as prescribed by the Presidential Decree (excluding expensive houses the value of which exceeds the standard prescribed by the Presidential Decree) and the appurtenant land within the area calculated by multiplying the area of land to which the building is fixed by the ratio as determined by region under the Presidential Decree; and

Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 18127 of Nov. 20, 2003)

Article 154 (Scope of “One House for One Household”)

(1) The term “one house for one household as prescribed by the Presidential Decree” in subparagraph 3 of Article 89 of the Act means the case where a household comprised by a resident and his spouse together with the family members living together with him at the same address or same place of residence, and one household having the house in Korea as of the date of transfer, and the retention period of the relevant house is not less than three years (in case of a house located in the major Si of Seoul Special Metropolitan City, the Si, and the Si, and the Si, and the Si, and the Si, and the Si, and the Si, and the Do, which are designated and publicly notified as a prearranged area for housing development under Article 3 of 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 one year during the retention period): Provided, That where one household has one house in Korea as of the date of transfer and falls under any of the following subparagraphs, it shall not be subject to

1. Where a constructed house for lease under the Rental Housing Act is acquired and transferred, if the dwelling period from the date of leasing the relevant constructed house for lease to the date of transferring the relevant house is five years or longer;

2. The case falling under one of the following items, and in this case, the remaining house and its appurtenant land which are transferred within two years from the relevant transfer date or expropriation date shall be deemed to be included in the cases of items (a) and (b):

(a) The Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor, in whole or in part;

expropriation through consultation or expropriation under other Acts;

(b) Deleted;

(c) Emigration and other cases prescribed by the Ordinance of the Ministry of Finance and Economy;

3. Where a house in which one year or more has resided is transferred by entering school as determined by the Ordinance of the Ministry of Finance and Economy, under any circumstances of service, medical treatment of a disease, or other incidental causes.

(2) In case where falling under one of the following subparagraphs, it shall be considered to be one year old under paragraph (1), even if one has no spouse:

1. Where the relevant resident is 30 or more years old, or where he has the income as prescribed in Article 4 of the Act;

2. Where his/her spouse dies or is divorced;

3. Where the resident inherits the house concerned. Finally.