Incheon District Court 2010Gudan471 (2010.15)

National Tax Service Review and Transfer 2009-0252 ( December 07, 2009)

Disposition that is deemed three houses for one household and imposed by applying the heavy taxation rate is illegal.

Considering the fact that a contract for selling an existing apartment is concluded and a contract for purchasing a new apartment after this framework is concluded, it is inevitable to possess three houses in the process of acquiring a substitute house, and it cannot be deemed that it actually possessed three houses. Therefore, the disposition imposed by applying the heavy taxation rate is illegal.

2010Nu25406 Revocation of Disposition of Imposing capital gains tax

AAA

○ Head of tax office

Incheon District Court Decision 2010Gudan471 Decided July 15, 2010

January 14, 2011

January 28, 201

1. The part of the judgment of the court of first instance against the plaintiff falling under the order of cancellation below shall be revoked. The part of the disposition imposing capital gains tax of KRW 85,55,653 against the plaintiff on August 10, 2009 by the defendant which exceeds KRW 71,296,379 shall be revoked.

2. The plaintiff's remaining appeal is dismissed.

3. Of the total litigation costs, 80% is borne by the Plaintiff, and the remainder is borne by the Defendant, respectively.

The judgment of the first instance court is revoked. The defendant revoked the disposition of imposition of capital gains tax of KRW 85,55,653 against the plaintiff on August 10, 2009 (the plaintiff amended the purport of the claim to seek revocation of the disposition of refusal of correction on July 20, 2009 from the application for modification of the purport of the claim and the cause of the claim on June 14, 2010, but it seems to have sought revocation of the disposition of imposition of capital gains tax as above).

1. Details of the disposition;

A. On June 11, 1997, the Plaintiff acquired ○○○○○○-dong 534 ○○○ apartment, 103 1203 dong 1203 (hereinafter “instant apartment”) and transferred it on May 22, 2008. At the time, the Plaintiff was acquiring and holding ○○○-dong 1487-7 △△△△-7 3 607 dong 3, 2008, and the Plaintiff’s spouse was acquiring and holding ○○○○-dong 949-4 101 dong 610 dong 10 on May 8, 2008.

B. On May 31, 2009, the Plaintiff filed a final return on the transfer income tax on the transfer of the apartment of this case, and filed a return on the calculation of KRW 84,578,769 by applying the transfer income tax rate of 60% to three houses for one household. However, on June 24, 2009, the Plaintiff filed a request for correction with the Defendant to the effect that the transfer of the apartment of this case constitutes one house for one household, and that the transfer of the apartment of this case should be exempted from taxation. The Defendant notified the Defendant that he would not accept the Plaintiff’s request for correction on July 20, 2009, and on August 10, 2009, the Plaintiff issued the instant disposition that added the transfer income tax of KRW 84,578,769, and additional tax of KRW 976,855,653, which was not paid until that date.

C. The Plaintiff filed a request for review with the National Tax Service on October 1, 2009, but received a decision of dismissal on December 8, 2009, and filed the instant lawsuit on March 5, 2010.

[Ground of recognition] A without dispute, entry of evidence No. 1, purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

1) The Plaintiff merely did not take a legal divorce procedure with his spouse KimA, and was in fact divorced from 2007 to not sharing the same livelihood at the time of the transfer of the instant apartment, and thus, the same household cannot be deemed as a member of the same household, and thus the same household is different. However, the instant refusal disposition that applied the heavy taxation provision to one household, solely on the ground that the Plaintiff is a spouse of the law, is unlawful.

2) The actual owner of the instant apartment that the Plaintiff donated the instant apartment to KimA and was entrusted with only the registration title in the future of the Plaintiff. Since the title truster received the purchase price of the instant apartment, the actual owner of the instant apartment is KimA, the title truster, and thus, the actual owner of the transfer income is considered to be KimA, and thus, the Plaintiff, only the title trustee,

3) Even if the Plaintiff and KimA constituted one household, since KimA transferred the instant apartment and acquired the instant apartment, which is a substitute house for the purpose of migration, the instant disposition is unlawful, since it is a case where the same household inevitably possessed three houses, and it cannot be deemed that it actually possessed three houses.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Whether it constitutes one household

In determining whether a “one house for one household” is a non-taxable requirement for capital gains tax, it shall be interpreted that a resident’s spouse is composed of a resident and a household solely based on the fact that the resident’s spouse is living together with the resident and is the spouse, and even if a spouse has a legal spouse at the time of the transfer of the house, even if the marital relationship has actually reached a failure, Article 154(1) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 20720, Feb. 29, 2008; hereinafter the same shall apply) on the premise that there is no spouse under the principle of strict interpretation of the provisions of tax-related Acts and subordinate statutes (see Supreme Court Decision 98Du17463, Feb. 23, 199) is not applicable. Therefore, it shall not be deemed that a single household referred to in this case’s only one spouse’s

Article 154(1) of the former Enforcement Decree of the Income Tax Act does not require a resident’s spouse to share his/her livelihood at the same address or same place of residence as the resident. The Plaintiff’s assertion that, even if the status of marriage between the Plaintiff and KimA has been broken down and the marital relationship actually exists between the two parties, so long as the legal relationship between the two parties is not resolved, the Plaintiff and KimA still form one household. Accordingly, the Plaintiff’s assertion on this part

2) Whether the substance over form principle is against the substance over form principle

The written evidence Nos. 2, 4, and 9 states that the Plaintiff donated the instant apartment to KimA and entrusted only the registered title with the Plaintiff, and there is no evidence to acknowledge that the actual owner of the instant apartment is KimA and the Plaintiff is merely the title trustee of the instant apartment. Therefore, the actual owner of the transfer income cannot be readily concluded that the actual owner of the instant apartment was KimA solely on the ground that KimA received the purchase price of the instant apartment.

Therefore, the disposition of this case, which imposed capital gains tax on the plaintiff who directly filed a final return of capital gains tax as the owner of the apartment registry of this case, cannot be deemed unlawful against the substance over form principle.

3) Whether the heavy tax rate is applied as three housing owners per household

Comprehensively taking account of the overall purport of the statements and arguments in Gap's evidence Nos. 2, 3, and 4, and Gap evidence Nos. 10 through 16, the plaintiff entered into a contract for the purchase of the apartment of this case with the spouse, KimA and two his/her dependent, and entered into a separate contract with the plaintiff around 2007, and the plaintiff acquired △△ apartment on March 20, 208. The plaintiff entered into a contract for the sale of the apartment of this case on March 27, 2008, received the intermediate payment on May 22, 2008, and completed the registration of the transfer of ownership. On the other hand, KimA entered into a contract for the purchase of the apartment of this case on March 29, 208, and paid the remainder of the apartment of this case, the exclusive use area of this case, approximately 8,500 square meters, which is an intermediate payment of this case.

The following circumstances acknowledged by the above facts are: (a) the Plaintiff entered into a contract to sell the apartment of this case and entered into a contract to purchase the apartment of this case after this mold; (b) KimA, who was residing in the apartment of this case, could pay a balance of ordinary number of houses as part payments of large number of apartment houses; (c) before the completion of the registration of ownership transfer concerning the apartment of this case, he completed the registration of ownership transfer first, and (d) he moved his place of residence into the Y apartment of this case directly with his two daughters; (c) while KimA, in the process of acquiring Y apartment, he set the sales amount between the seller and the seller and the seller, determined the remaining payment date, it would inevitably become three houses with the intention of owning the apartment of this case, and (d) he could not be deemed to have acquired the apartment of this case with the intention of owning the apartment of this case, and (e) he could be deemed to have received the remainder of the apartment of the apartment of this case on May 22, 2008, and thus, he could not be deemed to fall under Article 13 of the former Housing Act No. 13.

Therefore, the disposition of this case to which the Plaintiff applied heavy taxation rate by deeming that the Plaintiff is a single household housing owner at the time of transferring the apartment house of this case is unlawful.

4) Justifiable calculation of capital gains tax

Capital gains tax (attached Form 71,296,379 won (the same shall apply to the entry in the "justifiable capital gains tax" column)

3. Conclusion

Therefore, the part exceeding KRW 71,296,379 in the disposition of this case should be revoked in an unlawful manner. Thus, the plaintiff's claim of this case shall be accepted within the scope of the above recognition and the remaining claim shall be dismissed as it is without merit. The judgment of the court of first instance shall be revoked in part of the judgment of the court of first instance, and the part against the plaintiff corresponding to the above revocation shall be revoked in excess of KRW 71,296,379 in the disposition of this case and the remaining appeal of the plaintiff shall be dismissed. It is so decided as per Disposition by the assent of all participating Justices.