Seoul Administrative Court 201Gudan26094 ( October 27, 2012)

Cho High Court Decision 201Do2069 ( October 25, 2011)

One house for one household by acquiring local sovereignty and transferring the house within two years;

The fact that an employee had been issued cannot be deemed to have had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had

2012Nu2227 Revocation of revocation of request for rectification of capital gains tax

XX

The Director of the Pacific District Office

Seoul Administrative Court Decision 2011Gudan26094 decided June 27, 2012

November 21, 2012

January 9, 2013

1. The defendant's appeal is dismissed.

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

1. Purport of claim

The defendant's rejection of a claim for correction regarding capital gains tax of 000 won for the transfer income tax of 2011, which belongs to the plaintiff on March 22, 2011, shall be revoked.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. cite the judgment of the first instance;

The reason for this court's ruling is that the Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 22811, Jun. 3, 2011; hereinafter the same) is "Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 22811, Jun. 3, 2011; hereinafter the same)", and that the defendant's assertion and its decision are added as stated in the reasoning of the court of first instance. This part is written in accordance with Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

2. The defendant's assertion and its determination

A. The defendant's assertion

The Plaintiff left Korea on August 13, 2001 for the purpose of studying, and therefore, the transfer of the instant apartment shall be examined as to whether it falls under Article 154(1)2(c) of the Enforcement Decree of the Income Tax Act. However, since the Plaintiff transferred the instant apartment after the lapse of two years from the date of departure to January 27, 201, the Plaintiff is not subject to tax exemption for one house for one household. Even if the main provision of item (b) of the instant provision applies to the transfer of the instant apartment, the Plaintiff transferred the instant apartment after the lapse of two years from the date of employment under the Emigration Act because he was employed by the U.S. company with an employment visa on October 204, and thereafter, was the non-taxable owner under the Emigration Act, so long as the Plaintiff transferred the instant apartment after the lapse of two years from the date of employment. Accordingly, the instant apartment is lawful.

B. Determination

1) According to Article 154(1) of the Enforcement Decree of the Income Tax Act, the scope of one house for one household means that one household holds one house in Korea as of the date of transfer and that it has been held for at least three years, but in any of the following cases, the period of possession and the period of residence shall not be restricted. Accordingly, Article 154(1)2(b) of the Income Tax Act provides that "if one house is held as of the date of departure and it is transferred within two years from the date of departure because all members of the household depart from Korea due to emigration under the Emigration," and item (c) of the same Article provides that "if one house is held as of the date of departure and it is transferred within two years from the date of departure due to school or work which requires continuous overseas residence for at least one year, it shall be limited to the case where one house is held as of the date of departure and it is transferred within two years from the date of departure. Therefore, the plaintiff is sufficient to assert and prove any of the requirements for non-taxation of capital gains tax in items (b) and (c).

On the other hand, Article 4 of the Emigration calls for the cases of emigration emigration, emigration emigration, and emigration emigration as the types of emigration under each subparagraph. A person who intends to emigrate to the Republic of Korea shall report emigration to the Minister of Foreign Affairs and Trade in accordance with Article 6 of the Emigration Act, and report the emigration to the head of the Si/Gun/Gu having jurisdiction over the present place of residence in accordance with Article 19 of the Resident Registration Act. Therefore, the 'resident' refers to the transfer of the basis for livelihood to the Republic of Korea by filing a report of emigration under the Emigration and the Resident Registration Act with the intention of settling the foreign country.

2) First, it is deemed that the instant transfer constitutes the instant item (b) and is subject to non-taxation on one house for one household. The fact that the Plaintiff alone forms one household until January 27, 201, after graduating from a graduate school, up to the transfer of the instant apartment after its graduation from a graduate school, does not conflict between the parties. Therefore, the issue in the instant case is whether the Plaintiff transferred the instant apartment within two years after the Plaintiff left the country as an emigration under the Emigration.

As seen earlier, the Plaintiff was employed for the U.S. company upon receiving employment visa around October 2004. However, in full view of the following circumstances: (a) the Plaintiff appears to have failed to report emigration under the Emigration and Resident Registration Act at the time; (b) the visa who was issued by the Plaintiff is a short-term worker (H1B) who could stay in the U.S. for a period of two years and six months; (c) the expiry date was September 30, 2007; and (d) the Plaintiff acquired U.S. permanent share certificates on June 5, 201 and obtained a written confirmation from the Minister of Foreign Affairs and Trade on January 21, 201 after obtaining employment visa from the Republic of Korea on or around October 204; and (d) the Plaintiff cannot be deemed to have acquired employment visa from the Republic of Korea on the sole basis of the fact that the visa was issued to a foreign country on October 204, 205.

3) Accordingly, the Plaintiff’s transfer of the instant apartment on January 27, 201, which was about seven months after the acquisition of U.S. sovereignty, constitutes a non-taxation subject to one house for one household under the provisions of item (b) of this case. On a different premise, the Defendant’s above assertion cannot be accepted, and accordingly, the instant disposition is unlawful (B) (i.e., that the instant transfer does not fall under Article 154(1)2(c) of the Enforcement Decree of the Income Tax Act, and thus, it cannot be subject to non-taxation. However, as seen earlier, insofar as the transfer of the instant apartment falls under item (b) of this case, the Defendant’s remaining argument that the instant transfer of the apartment falls

3. Conclusion

The judgment of the first instance is justifiable. The defendant's appeal shall not be accepted as groundless.