Seoul Administrative Court 2009Gudan17165 (Law No. 19, 2010)

Review Transfer 2009-0191 ( November 11, 2009)

Whether or not the mother and the person have formed a separate household in the same multi-family house whose livelihood are different from the mother and the person;

Residential housing is structured so that two households may independently live in a multi-household, and it is not possible to see that they have been supported by independent income and living together with the resident registration, and it is only combined with the Plaintiff on the resident registration, and it falls under one house for one household as a separate household whose livelihood is different.

The contents of the decision shall be the same as attached.

1. The defendant's appeal is all dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

The Defendant’s imposition of capital gains tax of KRW 121,601,720 on February 3, 2009 shall be revoked.

2. Purport of appeal

The judgment of the first instance is revoked. All of the plaintiffs' claims are dismissed.

1. Details of the disposition;

① On November 16, 1976, the head of the Dong completed the registration of transfer of ownership on the ground of sale on February 13, 1997, on July 24, 1998, 18, 1878-4 805 Do-803 (hereinafter referred to as “the apartment of this case”) among the her husband KimB, who was living in ○○○○○○○-dong 33-2 with her husband KimB on November 16, 197.

② 장AA의 장남인 원고 김CC은 1988. 2. 26. 처 및 자녀들과 함께 ○○ ○○구 ○○동 284 ▲▲빌라 202호에 전입하여 살던 중, 1997. 6. 2. 부친 김BB 소유이던 ○○ ○○구 ○○동 33-2 대 317㎡(이하 '이 사건 토지'라 한다) 지상에 기존 주택을 헐고 철근콘크리트조 경사슬래브지붕 3층 다가구용 단독주택(2가구, 이하, '이 사건 다가구 주택'이라 한다)을 신축하고 소유권보존등기를 마쳤다. 원고 김CC은 위 주택 신축 무렵인 1997. 2. 11. ○○ ○○구 ○○동 33-2에 주민등록상 부모와 별개의 세대를 구성하여 전입하였다

③ As the husband KimB died on April 6, 2002, the head of the Dong constituted a single household on April 16, 2002, and on October 1, 2002, the head of the Dong completed the registration of ownership transfer based on inheritance by division under consultation on April 6, 2002 in the name of the head of the Dong and the Plaintiff KimB joined the household of the Plaintiff KimCC on April 11, 2007.

④ 장AA은 2007. 7. 26. 이 사건 아파트에 관하여 이♤♤ 앞으로 2007. 6. 26. 매매를 원인으로 한 소유권이전등기를 마쳐주었다.

⑤ On February 3, 2009, the Defendant: (a) excluded the application of the special case of non-taxation for one household on the ground that the Plaintiff KimCC owned the multi-household housing as of the date of the instant apartment transfer; and (b) imposed KRW 121,601,720 of the transfer income tax belonging to the year 2007 (hereinafter “instant disposition”).

6. The head of the AA died on June 15, 2010, and there was Plaintiff KimCC, KimD, KimE, and KimF as his/her heir.

[Reasons for Recognition] No. 1, Gap evidence No. 3-1, 2, 3, Gap evidence No. 4-1, 2, and Gap evidence No. 6-1, 2, and 3

2. Whether the instant disposition is lawful

A. The parties' assertion

The plaintiffs asserts that since the head of the Dong and the plaintiff KimCC constituted a separate household whose livelihood is different, the apartment of this case should be exempted from taxation as one house for one household. Accordingly, the defendant asserts that the head of the defendant, from February 11, 1997, the time when the plaintiff KimCC moved in the multi-household of this case, he was living as the same household as the plaintiff KimCC, and even if not, he should be deemed that the head of the Dong, his husband KimB, from April 2002, the time when the plaintiff KimB died, he was supported by the plaintiff KimCC and was living together. Thus, the head of the Dong asserts that the head of the Dong is the two house owner for one household at the time of the transfer of the apartment of this case.

B. Relevant statutes

As shown in the attached Form.

(c) Fact of recognition;

① From July 31, 1970 to July 31, 1970, the head of the Dong and KimB resided in the old house on the ground of the instant land owned by KimB, and Plaintiff KimCC, the head of South-Nam, had built the instant multi-household house on the ground of the instant land, and resided on the first floor of the instant multi-household house from February 11, 1997, and Plaintiff KimCC and its family members were residing on the second and third floor of the said house.

② Although the 1st floor and the 2nd floor and the 3nd floor of the instant multi-household are stairs connected to the 1st floor and the interior, a living room, a main room, a toilet, a toilet, and a room are installed separately so that each of them can lead an independent life. In addition to internal stairs, outside stairs leading from the 1st floor to the 2nd floor entrance.

③ On March 16, 1926, KimB obtained income from the textile system business and the stock farm business concurrently, and died on April 6, 2002. On April 6, 2002, the Plaintiff KimCC obtained benefits from around 1992, and from December 1, 2002, the real estate lease income (the revenue amount of the first value-added tax reported in 2007 KRW 43 million).

④ From 202 to 207, 2007, the head of the Gu received 36 million won from the other children except the Plaintiff KimCC as a living expense and received 152,155,51 won in total from others, such as receiving loans from others as a living expense, and paid 32,052,720 won in total, including 3,085 million won in living expenses, public charges, and 2,101,360 won in total.

⑤ After the death of the Siber KimB, the GG, the wife of the Plaintiff KimCC, had the ownership transfer registration on the instant land, and had the ownership transfer registration completed in the name of the Chapter AB, on November 7, 2003, he transferred ○○○○○○○○ apartment 103 Dong 1301, 1301, 200, along with his children on November 7, 2003, but again transferred the instant land to the multi-household of this case.

6) On October 12, 2007, the funeral care was provided to the Elderly Welfare Center after being hospitalized in the hospital due to the aggravation of cerebral fluorial symptoms, which is a fluoral disease. On the other hand, the apartment of this case was disposed of in order to provide medical treatment expenses, medical care expenses, etc., and the Plaintiff KimCC paid the Plaintiff KimCC’s medical treatment expenses, etc.

[Reasons for Recognition] No. 7, Gap evidence 8-1 through 4, Gap evidence 10-1, 2, 3, Gap evidence 11-1, 2, Gap evidence 12-1 through 8, Gap evidence 13-1 through 14, Gap evidence 18-1 through 14, Gap evidence 18-1, 19-2, Gap evidence 19-1, and 2, the testimony or video of the first instance trial witness KimF, the purport of the whole pleadings

D. Determination

In full view of the provisions of Article 89(1)3 of the Income Tax Act (amended by Act No. 9897 of Dec. 31, 2009; hereinafter the same shall apply) and Article 154(1) and (6) of the Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 21301 of Feb. 4, 2009; hereinafter the same shall apply), “one household” means a group comprised of the residents and their spouse together with the family members who make a living at the same address or same place of residence. The term “family” in this context refers to the lineal ascendants and descendants and siblings of the residents and their spouses, and includes those who temporarily leaves the original address or place of residence due to school attendance, medical treatment of diseases, situations of work or business. In addition, one household does not necessarily require the same household on the resident registration, but in light of its daily life, it should be the same livelihood with or without compensation (see Supreme Court Decision 2005Nu3868, May 28, 1983).

In full view of the following circumstances known by the above facts, the head of the Dong continued not only to live by husband KimB but also to form a separate household that is distinguished from the household of the plaintiff KimCC after KimB died. On April 11, 2007, the head of the Dong was incorporated into the household of the plaintiff KimCC. Accordingly, the head of the Dong was one house for one household until two years prior to the transfer of the apartment of this case, so the plaintiffs' above assertion is with merit.

① The instant multi-household is a structure in which two households may independently live.

② From February 11, 1997, when Plaintiff KimCC moved into the instant multi-household, the head of Plaintiff KimCC resided together with her husband KimB, who had independent income from before KimB died, and thus, the head appears to have been living independently from the Plaintiff KimCC’s household. From November 7, 2003 to December 16, 2005, Plaintiff KimB’s wife moved into the instant multi-household house with other children, it is difficult to view that Plaintiff KimCC Doctrine Doctrine Doctrine Doctrine, for the above period.

③ According to Article 154(2)2 of the Enforcement Decree of the Income Tax Act, even if one spouse of the married couple dies, the other spouse may form a separate independent household. There is no evidence to deem that there was a special change in the shape of the residence or the management form of the living fund of the head of the Dong after the death of the KimB. Rather, the head of the Dong appears to have managed the living fund while independently paying for living expenses, public charges, etc. on the income of the husband KimB’s heritage, the amount of money received from his/her children,

④ At around 2007, around the time when the head of the Dong filed a joint application with the Plaintiff KimCC, there was room to view that the Plaintiff KimCC was living together with the Plaintiff KimCC in the form of the intent of the head of the Dong and the management of the living fund after being hospitalized in the hospital due to the aggravation of the disease in around 2007, and after being entrusted with the expenses such as account management and treatment expenses. However, even so, even if so, the instant apartment housing level within 2 years from the date of the above households constitutes a non-taxation exception for the first household under Article 155(4) of the Enforcement Decree of the Income Tax Act.

E. Sub-decision

Therefore, the instant disposition based on the premise that the headA constituted the same household as the Plaintiff KimCC at least two years prior to the date of the instant apartment transfer is unlawful.

3. Conclusion

If so, the plaintiffs' claims are justified, and the judgment of the court of first instance is just in conclusion, and all appeals of the defendant are dismissed. It is so decided as per Disposition.