Busan District Court 201Guhap3846 (2.02.09)

Cho High Court Decision 2010Da3286 (Law No. 11, 2011)

A household shall not be deemed to meet the residential requirements among the non-taxation requirements for one house for one household.

It is difficult to recognize that the plaintiff's spouse had resided in a transfer apartment for not less than two years, and the plaintiff and his children have not resided in the transfer apartment but moved the residence to another Si/Gun because they had resided in the transfer apartment.

2012Nu843 Revocation of Disposition of Imposing capital gains tax

Ma XX

Head of Seogsan Tax Office

Busan District Court Decision 2011Guhap3846 Decided February 9, 2012

October 31, 2012

December 5, 2012

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance shall be revoked. The imposition of capital gains tax of KRW 000 for the year 2009 against the Plaintiff on January 11, 2010 shall be revoked.

1. Quotation of judgment of the first instance;

The reasoning for the court's explanation concerning this case is as stated in the reasoning for the judgment of the court of first instance, except for the last 9-party 9-party 9-party 9-party 9-party 9 to 11-party 2 (b)-party 2)-party 9-party 9-party 9-party 2 and 3-party 11-party 2. Thus, this court shall accept it as it is in accordance with Article 8 (2) of the Administrative Litigation Act

2. Parts to be dried;

Whether a resident registration record card is residing for any period other than the resident registration record card;

(A) Whether the dwelling period of the apartment of this case exceeds 2 years

The plaintiff asserts that, in addition to the period under the above resident registration card, AA has occupied on March 26, 2003 and actually resided in the apartment of this case by September 30, 2005.

According to the evidence of evidence No. 12, No. 21, and No. 24, it is difficult to recognize that A paid management fees for the apartment of this case from September 2004, February 2005 to September 2005, A used credit card units at the plenary point in the vicinity of the apartment of this case between November 25, 2004 to July 17, 2005, and the fact that A had registered its membership in the name of the Plaintiff at the OO sport Center in the vicinity of the apartment of this case from January 8, 2005 to February 12, 205, it is difficult to recognize that A had registered its membership in the name of the Plaintiff at the 3rd apartment of this case. However, in light of the above facts, the evidence of evidence No. 2, which was the owner of the apartment of this case or the Plaintiff’s resident registration of this case, could not be found to have been found to have not been found to have been registered as the Plaintiff’s resident registration of this case No. 2. 3.

(B) Whether a house in which one year or more has resided has been transferred to a third party under work circumstances

The proviso of Article 154(1)3 of the former Enforcement Decree of the Income Tax Act provides that where one household has a house in Korea as of the date of transfer and has resided in Korea for more than one year, such house shall not be subject to restrictions on the period of possession and period of residence in cases of transfer due to school attendance, circumstances in work, medical treatment of diseases, and other unavoidable reasons. Article 71(3) of the former Enforcement Rule of the Income Tax Act (amended by Ordinance of the Ministry of Strategy and Finance No. 154 of Apr. 30, 2010) provides that "any circumstances of service as prescribed by Ordinance of the Ministry of Strategy and Finance" means cases where all members of a household move to a Gun due to such conditions as change of work place or transfer of work place.

Even if it continued to reside in the apartment of this case from September 2004, which began to pay the management expenses of the apartment of this case, to September 2005, the payment of apartment management expenses was completed, it does not meet the requirements of Article 154 (1) proviso 3 of the former Enforcement Decree of the Income Tax Act in light of the following circumstances.

① Comprehensively taking account of the purport of the entire pleadings, the Plaintiff’s two children from March 23, 2001 to January 27, 2008, together with the Plaintiff’s two children, resided in the “new apartment located in the same Dong from January 28, 2008 to January 27, 2008,” and served as the Plaintiff’s middle school teacher located in Busan. Of the Plaintiff’s children, HCC, from February 27, 2008 to August 16, 201, may recognize the fact that the Plaintiff resided in the instant apartment and moved back to Busan. Accordingly, the Plaintiff and its children did not have resided in the instant apartment, and they did not have resided in the instant apartment, and they do not fall under the case where all of the households move to Busan.

In light of the purport of not imposing capital gains tax on the income accruing from the transfer of one house for one household, the Plaintiff asserts to the effect that all members of the household are not necessarily required to reside in the relevant house in order to fall under one house for one household, as it does not necessarily need to reside in the relevant house, even if all members of the household move to another house, it satisfies the non-taxation requirements.

However, such assertion is contrary to the language and text of Article 71(3) of the former Enforcement Rule of the Income Tax Act, and if a part of a household relocates a house, only the household can prepare a house for the household that maintains the existing house, but it is not easy to maintain the existing house and prepare a new house in a new house. In such a case, it is also difficult to require strict requirements for residence. In full view of the fact that, if all of the households do not move a house, it would be likely to undermine the stability of the people's residential life and the freedom of moving their residence, and thus, it is difficult to apply the mitigated requirements for residence for at least one year, in a case where the whole household does not move a house. Therefore, the Plaintiff's above assertion is without merit.

② Comprehensively taking account of the overall purport of the arguments as to Gap evidence No. 16, it can be acknowledged that Byung had worked in the aboveCC corporation from August 2006 to October 2007, from October 2007 to around January 2008, from February 2008 to May 2008, from February 2008 to May 2008, and from June 2008, from June 2008 to May 2009, it is difficult to view that the above fact of recognition alone constitutes a case where it is difficult to view that it constitutes a case of moving the residence to work, such as a change of work place, or a case where it is difficult to view that it does not fall under a case where it is difficult to view that it is a case of moving the residence from September 10, 200 to a work place (it does not constitute a case where the dwelling place of this case was leased to the Seoul High Court as of September 205).

3) Sub-determination

Therefore, since it cannot be deemed that AA had resided in the apartment of this case for more than two years, it does not fall under the requirement of "one house for one household" under the main sentence of Article 154 (1) of the former Enforcement Decree of the Income Tax Act, and it does not fall under the case of transferring a house in which he has resided for more than one year, and it does not fall under the requirement of "one house for one household" under the proviso of Article 154 (1)

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.