Seoul Administrative Court 2010Gudan4424 ( October 13, 2011)

early trial 2009u377 ( December 28, 2009)

It shall not be recognized that a family member living together has formed one household.

In case of expropriation of each land and each house, it is not sufficient to recognize that the family has formed one household as a member of the family living together with the same address or residence, and as long as it cannot be seen as one household, the provisions of non-taxation on one house for one household shall not be applied without examining whether each house is one house.

Article 89 of the Income Tax Act

2011Nu19262 Revocation of disposition of imposing capital gains tax

Sector XX

Gangwon-gu Director of the District Office

Seoul Administrative Court Decision 2010Gudan4424 decided May 13, 2011

March 23, 2012

April 6, 2012

1. The plaintiff's appeal is dismissed.

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

And Appellate paper

The judgment of the first instance shall be revoked. The Defendant’s imposition of capital gains tax of KRW 000 against the Plaintiff on June 1, 2009 shall be revoked.

1. Details of the disposition;

Except for the case where “13th class” is deemed as “00 won” in the corresponding column of the judgment of the first instance court, Article 8(2) of the Administrative Litigation Act, and Article 420 of the Civil Procedure Act, the same shall apply in accordance with Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) At the time of the expropriation of each of the instant land and each of the instant housing units, the Plaintiff, Yong-Namnam High School BB, and their families (hereinafter “family members including the Plaintiff”) had no specific income from the Plaintiff’s pension income, the Plaintiff’s second land lease income, the Plaintiff’s bank loan, etc., and the instant housing were located within one fence. Each of the instant housing is located within one fence, and it constitutes one house because the resident forms the same household, and thus the instant land constitutes a single house, and thus, each of the instant housing constitutes a land annexed to one house for one household under Article 89(1)3 of the Income Tax Act, which is exempt from capital gains tax, and thus, the disposition of this case on a different premise is unlawful.

"2) At the time of expropriation of each of the instant land and each of the instant housings on the instant land No. 1, the instant disposition was unlawful (the amount of capital gains tax to be imposed at the time of expropriation of the instant housing is KRW 00,00,000,000,000 in addition to the instant housing which is 80.62 square meters in size (hereinafter referred to as “house No. 1”) as seen above, without actually removing the housing which is 5.20 square meters in size different from the entry in the building management ledger. However, the instant disposition based on the premise that the housing No. 2 had already been demolished at the time of expropriation and did not exist at the time of expropriation (the portion exceeding it in the instant disposition is unlawful since the amount of capital gains tax to be imposed at the time of

Since the corresponding column of the judgment of the first instance is the same as the entry, it shall be quoted in accordance with Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure

C. Determination

1) Whether each of the instant lands is land annexed to one house for one household

A) First, we examine whether family members, such as the Plaintiff, etc., constitute one household of one house exempt from capital gains tax under the Income Tax Act.

As seen in the relevant statutes, the Enforcement Decree of the Income Tax Act provides for one household with respect to a “family member who lives at the same address or same place of residence” and the term “family member who lives at the same address or same place of residence” refers to a unit of living at the same time and in the same place of residence with respect to a family register or with respect to a daily life without the need to share the same household in the resident registration card (see, e.g., Supreme Court Decisions 85Nu194, Nov. 26, 1985; 88Nu3826, May 23, 199)

However, in light of the following circumstances, Gap evidence Nos. 6-1 through 5, Gap evidence Nos. 9-1, 2, and 10-1, 2, Gap evidence Nos. 20, 21, 23, Eul evidence Nos. 4-1, 2, Eul evidence Nos. 5, Eul evidence Nos. 6-1 through 4, Eul evidence Nos. 12-9, 13-1 through 5, Eul evidence Nos. 14-1, 14-2, and all pleadings, the evidence submitted by the plaintiff alone is insufficient to acknowledge that family members, such as the plaintiff, etc., live together with the same address or residence at the same time, and there is no other evidence to acknowledge otherwise. Accordingly, the plaintiff's assertion that family members including the plaintiff, etc. constitute one household, which is exempt from capital gains tax under the Income Tax Act, constitutes one household's non-taxable transfer income tax.

(1) At the time of the expropriation of each land of this case, the head of the plaintiff, the South Korean heartB, and the Samnam heartCC respectively, were 43 years of age, 40 years of age, 36 years of age, and 36 years of age (two in-house, three in-house, three in-house, and two in-house; three in-house, and two in-house; and in-house and in-house family members, the plaintiff's husband and wife, and in-house and in-house, resided in the third floor of the land of this case. In light of the fact that both the third party and their children were 13 persons, it is necessary to present sufficient data to find that they were living in the same household as mentioned above in the plaintiff's husband and wife in order to view that they were 13 persons of the same household, and the circumstances alleged by the plaintiff [the plaintiff's pension income and the land lease income of this case as the plaintiff's land of this case, which could not be seen as having been returned to the plaintiff's public health insurance premium of this case.

(2) Each individual income does not naturally mean that it is a separate household, but the existence of individual income functions as important data in determining whether it is a separate household. In full view of the following facts, it appears that both the Plaintiff’s pension income and the Plaintiff’s family’s living expenses were not available for all the Plaintiff’s pension income and the amount of rent income, it appears that the appellateA, the appellateB, and the appellateCC appears to have separate income (the Plaintiff’s employment and income status as follows are mostly transferred to the Plaintiff, and it does not appear to have been used for one household as a result of expropriation. However, the Plaintiff’s employment and income status at the time of expropriation cannot be determined as data for a certain portion of the previous income and the place of use, so the above argument cannot be accepted. On the other hand, if there is individual income, it cannot be recognized that this income was used for the family’s community life, such as the Plaintiff, as long as it cannot be found that it was used for the Plaintiff’s public charges, etc., alone, that the Plaintiff’s family members living together with the same livelihood.

O: (a) From September 15, 2004 to September 15, 2006, the PC was operated with the wife KimD, as well as the PC. From September 2002 to April 2003, 200, the construction business was operated with the location of 00-00, Songpa-gu Seoul OOdong from September 2002 to April 200; (b) due to the failure to report the amount of exemption from the sale of multi-household housing for 2003, the total income was notified around May 2007; (c) the amount of income determined at the time was KRW 00; and (d) the amount of global income was KRW 00. Meanwhile, from June 1992 to December 15, 1994, the wife KimD operated from around 200 to October 30, 201 to 200 (△△△△, a restaurant (△△), from around 100 to October 25, 1994.

C YB from 1994 to 199, from 2000 to 2001, from KK services to MaM and HH transportation corporations, from 2005 to 2007, and from 2007, the wife KimE operated the retail store on the land of this case from 1 to 2001 to 2007. The wife KimE operated the retail store on the land of this case.

PPP has continued to work for PPP since 1996.

B) As seen earlier, as long as the Plaintiff et al.’s family members cannot be seen as one household, it is unnecessary to further examine whether each of the instant housing units constitutes one house (the Plaintiff asserts that whether each of the instant housing units constitutes one house should be determined not by the determination of whether each of the instant housing unit is provided as a whole, but by the determination of whether each of the instant housing unit is located within a fence and each of the residents forms the same household. As such, even according to the assertion, the Plaintiff’s assertion cannot be accepted as long as the Plaintiff et al.’s family members, such as the Plaintiff, cannot be seen as one household, as seen earlier.

2) Whether there was 2 houses on the land of this case at the time of expropriation

A) The Plaintiff entered in the statement of compensation for losses, prepared by surveying the building on the instant land No. 1 in EP, in the EP, into a housing site of 122.38 square meters (excluding a boiler room 2 and a 16.2 square meters in total). This area is almost similar to the total of 80.62 square meters in the housing register and 5.20 square meters in the building management register for housing No. 1, the area of which is 80.62 square meters in the housing register (135.82 square meters in the building management register) and the total of 5.20 square meters (135.82 square meters in the building management register for housing No. 2). As can be seen, EE food on the instant land at the time of 206 had been located, which is a retail store appearing in the building management register for housing No. 1 in the instant case at the time of 206.

B) However, under the following circumstances, Gap 26, 27, 28 square meters, Eul 10 m2, 12 m20 m2, 10 m20 m2, 15 m2 m2, namely, ① Two houses in the building management register of housing 2 are removed on January 7, 2002. Considering that the building management ledger was conducted through a series of processes that examine necessary documents as prescribed by the relevant Acts and subordinate statutes and directly investigate and verify the current status of the building, its credibility cannot be readily denied unless there are special circumstances. ② Housing 1,2 and 3 m2 (housing 1, 22, and 2) were located outside of 20 m20 m20 m200 m2, and the building management ledger was prepared separately from 100 m2,000 m2,000 m2,000 m3 m2,000 m2,00 m2.

3. Conclusion

If so, the plaintiff's claim of this case shall be dismissed due to the lack of reason, and the judgment of the court of first instance is just in conclusion, and the plaintiff's appeal is dismissed as it has no reason.