early 2012Gu0099 ( October 12, 2012)

It is difficult to recognize that only resident registration was actually living for at least two years;

In light of the fact that one household is a non-taxation requirement for one house and the period of residence was actually resided in the house, and credit cards were used mainly in another Si from the location of the transferred house and their children were not universities in another Si, it is reasonable to deem that only the transferred house was registered as a resident, and that they did not actually reside therein.

Article 89 of the Income Tax Act

2012Guhap1725 Revocation of Disposition of Imposing capital gains tax

XX Kim

Head of Namgu Tax Office

August 17, 2012

September 19, 2012

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 000 for the year 2006 against the Plaintiff on September 9, 201 shall be revoked.

1. Details of the disposition;

A. On September 7, 2001, the Plaintiff acquired and possessed 000 square meters of 000 square meters of land 63.34 square meters and 67.28 square meters of land 6, 000, Gangnam-gu, Seoul, Gangnam-gu, Seoul, and transferred the instant house to 000 won on December 7, 2006, and then reported and paid 000 won of the transferred income tax to the Defendant by calculating the transfer margin only for the excess of 000 won as the object of non-taxation for one household.

B. The Defendant, on September 9, 201, imposed KRW 00 on the ground that the Plaintiff did not actually reside in the instant house for more than two years, Article 89(1)3 of the former Income Tax Act (wholly amended by Act No. 9897, Dec. 31, 2009; hereinafter referred to as the “former Income Tax Act”) and Article 154(1)3 of the former Enforcement Decree of the Income Tax Act (wholly amended by Presidential Decree No. 20618, Feb. 22, 2008; hereinafter referred to as the “former Enforcement Decree of the Income Tax Act”) on the ground that the Plaintiff did not meet the requirements for non-taxation for one household under the main sentence of Article 154(1) of the former Enforcement Decree of the Income Tax Act (hereinafter referred to as the “instant disposition”). The Plaintiff filed an appeal with the Tax Tribunal on November 29, 201, but was dismissed on March 12, 2012.

[Ground of recognition] Facts without dispute, Gap evidence 1-1, 2-2, Eul evidence 1-1, the purport of the whole pleadings

2. The plaintiff's assertion is as follows.

As the Plaintiff actually resided in the instant house for not less than two years from November 22, 2004 to January 7, 2007, such as the day prior to the entry under the resident registration card during the retention period of the instant house, the instant disposition is unlawful.

3. Related statutes;

Attachment 'Related Acts and subordinate statutes' shall be as shown.

4. Determination

A. The principle of strict interpretation derived from the principle of no taxation without law is applicable not only to the cases meeting the taxation requirements, but also to the cases meeting the requirements for non-taxation and tax reduction and exemption. As such, extended interpretation or analogical interpretation of the requirements for non-taxation or tax exemption and exemption as favorable to taxpayers without any justifiable reason causes a result contrary to the principle of no taxation, which is the basic ideology of the tax law, and thus, it shall not be allowed (see, e.g., Supreme Court Decision 2005Da19163, May 2

According to Article 89 (1) 3 of the former Income Tax Act, one house for one household as prescribed by the Presidential Decree and the transfer income accruing from the transfer of land appurtenant thereto shall not be subject to any transfer income tax. According to Article 154 (1) and (5) of the former Enforcement Decree of the Income Tax Act, the term “one house for one household as prescribed by the Presidential Decree” under Article 89 (1) 3 of the former Enforcement Decree of the Income Tax Act means the period from the date of transfer to the date of transfer where one household comprised of the resident and his spouse together with the family members living together with the same household at the same address or same place of residence has one house in Korea as of the date of transfer and has three years or more (in case of the Seoul Special Metropolitan City, etc., the period of possession shall be three years or more, and the period of residence shall be the period from the date of transfer to the date of transfer under the resident registration certificate to the date of transfer.

In light of the language and text of Article 154(5) of the former Enforcement Decree of the Income Tax Act, there is no room to interpret that the period of residence as a non-taxation requirement for one household should be entered in the resident registration card regardless of whether it actually resides, but Article 154(1) of the Enforcement Decree of the Income Tax Act sets the non-taxation requirement for one household and sets the period of residence in addition to the period of possession only in a certain area such as Seoul Special Metropolitan City, etc. The purpose of the above legislation is to restrain real estate speculation. If the above period of residence is determined entirely by the entry in the resident registration card, there is concern that the above legislative purpose would be sept out, and Article 154(1) of the Enforcement Decree of the Income Tax Act requires the "resident" as a non-taxation requirement, and it is clear that the "resident" means the "residential period" as a place in a specified place, and Article 154(5) of the Enforcement Decree of the Income Tax Act is only the method of calculating the "resident period", and Article 154(2) of transfer period from 87.7.

B. In light of the following circumstances, it is insufficient to recognize that the Plaintiff had resided in the instant house for more than two years only with the descriptions of evidence Nos. 2 and 9, and rather, in light of the following circumstances recognized by the descriptions of evidence Nos. 2 and 6-2, it is reasonable to deem that the Plaintiff was only registered as a resident in the instant house and did not reside for more than two years. Therefore, the Plaintiff’s assertion is without merit.

(1) The Plaintiff and his/her children Park Jong-young entered Daegu University on February 28, 2005 and graduated from February 19, 2010 (the term of temporary closure from February 23, 2006 to August 28, 2006, and February 29, 2008, respectively).

Tter up to July 2, 2008

(2) During the residence period of the Plaintiff’s assertion, the credit card in the name of the Plaintiff was used mainly in Daegu, and almost in Seoul, which is the location of the instant house. Furthermore, according to the Plaintiff’s health insurance benefit content, the hospital or pharmacy that received health care benefits during the period for which the Plaintiff asserted that he had resided in the instant house, almost all of the hospital or pharmacy that received health care benefits are in Daegu.

5. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.