Cho High Court Decision 201Do3265 (Law No. 19, 2012)

It is recognized that he/she has resided in a transferred house for at least two years, so he/she shall meet the requirements for one house residing in one household.

Although the lessee was residing in the transferred house, the lessee appears to have leased the house by lowering the lease deposit on the premise that the Plaintiff and the Plaintiff were temporarily residing in the transferred house, and the structure of the house seems not to be always impossible for the Plaintiff to temporarily reside in the house. Therefore, it is reasonable to view that the lessee resided in the house for at least two years.

2012Gu 9386 Revocation of Disposition of Imposing capital gains tax, etc.

E.N.R.

Director of the District Office

October 24, 2012

December 5, 2012

1. The Defendant’s disposition of imposition of capital gains tax of KRW 00 against the Plaintiff on July 1, 2011 is 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 September 12, 2006, the Plaintiff acquired and possessed 000 OO-dong 000 O-dong 000 (hereinafter “instant house”) on September 12, 2006, and did not report the transfer income tax on April 23, 2010 by deeming that the instant house constitutes one house non-taxation for one household after transferring it.

B. However, on July 1, 2011, the Defendant decided and notified the Plaintiff on July 1, 201, and “the Plaintiff did not reside in the instant house for at least two years, and the Plaintiff did not meet the requirements for non-taxation of one house for one household,” and thus, 00 won of the capital gains tax for the year 2010 (hereinafter “instant disposition”).

[Based on Recognition] Unstrifed Facts, Gap evidence 1, and Eul evidence 1 (including household numbers), and the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The Plaintiff resided in the instant housing for not less than two years and met the requirements for non-taxation for one household. Therefore, the instant disposition that reported that the transfer of the instant apartment constitutes non-taxation as one house for one household, and that was unlawful.

(b) Fact of recognition;

(1) On September 12, 2006, the Plaintiff, along with the acquisition of the instant house, made a move-in report, and thereafter, lived together with the family members of the instant house (E, children) from that time.

(2) On March 3, 2006, EF, the Plaintiff, entered the OO High School (Seoul Yongsan-gu OOdong 000) and graduated from the above high school on February 12, 2009.

(3) On June 19, 2008, the Plaintiff entered into a lease agreement with the Republic of Korea to rent 000 OO apartment 00 00 000 dong-dong, Gangdong-gu, Seoul (hereinafter referred to as "OOO apartment") with the annual rent of KRW 000,000, and transferred the internal repair until July 2008, and the EE and EF move their resident registration to OO apartment 0 on July 31, 2008.

(4) The Plaintiff leased the instant house to Nowon on September 2, 2008, and transferred the resident registration from the instant house to OO apartment on September 24, 2008.

[Ground of Recognition] The above evidence, Gap evidence 1 to 15, and Eul evidence 1 to 7 (including each number), the witness oldG and red leap testimony, and the purport of the whole pleadings

C. Determination

Article 89(1)3 of the Income Tax Act, and Article 154(1) of the Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 22950, Jun. 3, 2011) provide that a house located in Seoul Special Metropolitan City as at the time of 2010 is exempt from taxation, and that the period of possession is at least three years, and that one household has to reside for at least two years during that period (see Article 89(1)3 of the Income Tax Act, and Article 154(1) of the Enforcement Decree of the Income Tax Act). According to the health stand in this case and the above facts of recognition, the Plaintiff temporarily resided in the instant house from September 12, 2006 and moved the instant house into an OO apartment on September 24, 2009, while the Plaintiff’s resident registration was transferred to the Plaintiff’s 200 or more, the Plaintiff appears to have temporarily resided in the instant house from the 2G high school, and the Plaintiff appears to have temporarily resided in the instant house from 2G high school at that time.

D. Sub-committee

Therefore, since the Plaintiff is deemed to meet the requirements for non-taxation on one house for one household, the instant disposition that was reported differently is unlawful.

3. Conclusion

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