The propriety of the disposition that excludes special cases of non-taxation for one household by making a disguised divorce.

It is required to provide strict proof for the application of special cases of non-taxation for one household. However, just because the tax authorities cited, it is insufficient to recognize it.

Article 89 of the Income Tax Act

1. The Defendant’s disposition of imposition of capital gains tax and additional tax 25,587,980 won for the year 2001 against the Plaintiff on August 22, 2006 shall be revoked.

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

The same shall apply to the order.

1. Details of the disposition;

A. On April 28, 1988, the Plaintiff acquired ○○○○-dong 627 ○○○○○○○○○ Housing 15 dong 302 (hereinafter “instant housing”) and transferred her to ○○○ on March 15, 2001.

B. On July 30, 2002, the Defendant decided not to impose capital gains tax on the premise that the instant house is non-taxable as one house for one household. The Defendant confirmed the fact that the Plaintiff maintained his resident registration at the domicile of Kim○○ on July 11, 1997, and found that a disguised divorce was made in order to evade capital gains tax, thereby excluding the non-taxation provision on one house for one household, and imposed capital gains tax and additional tax on August 22, 2006 (hereinafter “instant disposition”).

[Ground of recognition] Unsatisfy. Gap evidence Nos. 4, Eul evidence Nos. 2 and 4. The purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The parties' assertion

(1) The plaintiff's assertion

On July 11, 1997, the Plaintiff was the single house owner at the time of transferring the instant house, and thus, the transfer income from the transfer of the instant house is exempt from taxation.

(2) The defendant's assertion

In light of the fact that the Plaintiff and ○○○ (hereinafter “Plaintiff”) had been divorced on July 11, 1997 and had been engaged in real estate transactions in several times each time after having been divorced on July 11, 2006, the Plaintiff and ○○ (hereinafter “Plaintiff”) had been engaged in disguised divorce in order to avoid capital gains tax, and thus, the application of the non-taxation provisions on one house for one household ought to be excluded.

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

(1) In principle, where a resident and his spouse are divorced, each household shall be comprised of one household in principle, but a disguised divorce shall not be deemed to constitute a separate household under the substance over form principle in order to receive non-taxation benefits for one household. However, as a matter of principle, a resident shall form one household together with his/her spouse, and as a result, in order to constitute a resident and one household, the resident’s spouse must share the same livelihood at the same domicile or temporary domicile as his/her spouse in order to constitute the resident and one household, there is no restriction other than that of his/her spouse, and the resident’s spouse shall be able to form a household without his/her spouse only in exceptional cases, such as death or divorce of his/her spouse. Therefore, under the principle of strict interpretation of tax law, the resident’s spouse shall constitute the resident and one household solely on the basis of his/her spouse (see, e.g., Supreme Court Decision 97Nu19465, May 29, 198).

(2) Comprehensively taking account of the overall purport of the pleadings as to Gap's evidence Nos. 3, 1 through 4, and 5-1, 2, and each of the above statements, the plaintiff was married on July 11, 1997 with Kim Il-ok on his resident registration, but maintained his resident registration at the same domicile after changing the relationship with the head of the household, into his wife on July 25, 1997. The plaintiff thereafter transferred his residence on August 18, 200 and May 12, 2001 to 1, 200, the plaintiff could not be acknowledged as having transferred his resident registration to 3,00,000 from 7,000 to 7,000,000, 7,000, Kim Jong-dong's 1, 200, 7, and 7,000, 7,000, 7, 7,000, 7,000.

3. Conclusion

If so, the plaintiff's claim of this case is reasonable, and it is decided as per Disposition.