Review Transfer 2009-0042 (Law No. 2009.04.10)

Whether a person has maintained his/her independent living with different place of residence

The plaintiff is insufficient to recognize that he had maintained an independent household by organizing a separate household in view of his domicile, income amount, etc. in the status of having one house between women and women.

The contents of the decision shall be the same as attached.

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposition of capital gains tax of KRW 31,883,50 against the Plaintiff on January 2, 2009 shall be revoked.

1. Details of the disposition;

A. On December 4, 2002, the Plaintiff acquired and owned BB-dong 16-161 172 m2 m2 and 72.46 m2 of the total floor area of the detached house on its ground (hereinafter “instant house, etc.”). On December 15, 2006, on December 15, 2006, the Plaintiff transferred the ownership (hereinafter “instant transfer”).

B. After that, as at the time of the transfer of this case, the Defendant: (a) the Plaintiff’s wife, at the time of the transfer of this case, owned the Plaintiff’s 17-375 square meters and 155 square meters of land, and the said 48.54 square meters of land; (b) thus, it cannot be deemed that the instant housing, etc. constitutes two houses for one household; and (c) and (d) recommended the Plaintiff to report the tax base of capital gains related to the transfer of this case on January 9, 2008 by making the acquisition value and the transfer value as the actual transaction value, based on the acquisition value and the transfer value as the actual transaction value, KRW 398 million, and the transfer value as KRW 560 million, and the necessary expenses as KRW 9,891,000,000,000,000

C. Accordingly, on January 2, 2009, the Defendant: (a) recognized only KRW 90 million as necessary expenses, excluding KRW 10 million out of the said KRW 100 million as the necessary expenses, as the Plaintiff claimed in the necessary expenses; and (b) calculated gains on transfer; and (c) issued the instant disposition to rectify and impose capital gains tax on the additional portion reverted to year 2006 as KRW 31,883,500, on the ground that it cannot be deemed that the remainder of KRW 90 million, excluding the said KRW

[Ground of recognition] The items in Gap evidence 1-1, 2, Gap evidence 3, 4, Eul evidence 1-5, and the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The instant disposition is unlawful for the following reasons.

(1) At the time of the transfer of this case, the Plaintiff’s husband and wife, who was the parent of the Plaintiff at the time of the transfer of this case, lived with the married woman’s income at another place in the Plaintiff’s residence, and thus, the Plaintiff’s husband and wife and the Plaintiff’s husband and wife shall be deemed as one independent household pursuant to Article 154(2)3 of the Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 20618, Feb. 22, 2008). Accordingly, the instant house, etc. subject to the transfer of this case constitutes one house subject to non-taxation under Article 89(1)3 of the Income Tax Act.

(2) Even if it is not so, the Plaintiff paid the instant house with the construction cost of KRW 80 million around July 2003, and offset the Plaintiff’s loan claim against the Plaintiff of KimCC, the construction business operator, by the equal amount of KRW 80 million, and the Plaintiff’s loan claim against the Plaintiff’s KimCC as an intermediary fee of KRW 20 million. In addition, in calculating the transfer income of the instant house, the Plaintiff paid KRW 20 million as an intermediary fee. Therefore, in calculating the transfer income of the instant house, the Plaintiff should recognize the total of KRW 100 million, including the above construction cost and relay fee, as necessary expenses.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(1) As to the first argument

(A) Facts of recognition

1) On June 27, 2002 through July 9, 2002, the Plaintiff acquired the above BB-dong 17-375 land and its ground detached houses, and thereafter became two houses owners by acquiring the instant housing, etc. on December 4, 2002.

2) On February 7, 2006, the Plaintiff donated the above BB-dong 17-375 land and detached houses on the same day, and completed the registration of ownership transfer for each of the above real estate in the name of Jung on the same day, and thereafter transferred the instant housing, etc. on December 15, 2006.

3) On January 20, 1986, Jeong was 20 years of age at the time of the transfer of this case by birth. The Plaintiff graduated from the mobilization university on August 25, 2006, which was about four months prior to the transfer of this case.

4) According to the AA’s certificate of employment (Evidence A No. 5) and the income tax decision resolution for the year 2006, the AA had worked as a day duty and free franchise from March 2, 2006 to July 15, 2007 for children’s island wholesale and retail companies (ju) located in Dongdaemun-gu Seoul Metropolitan Government, Dongdaemun-gu, as a day duty and free franchise. It appears that the AA was paid nine million won as a total salary in the year 2006.

5) The Plaintiff’s husband’s domicile at the time of the transfer of this case was changed to the BB Dong 16-161, which was the location of the instant housing, etc., and was changed to the BB Dong 19-3 6 Dong 306 on January 3, 207.

6) The name and domicile of the Party A, on February 3, 2006, of the above BB Dong 16-161, which is the location of the instant house, was ① 521-24, ② from the above Ddong 521-24 on July 18, 2006 to the above Ddong 6-17303, ③ on August 16, 2006, the above Ddong 6-27303, ④ on December 1, 2006, the above Ddong 6-27303, and ④ the above Ddong 6-27303, the above Ddong 16-27303 on December 1, 206, the change from the above BB Dong 16-11, May 10, 2008 to the Plaintiff B Dong 16-11 to the above Bdong 16-303, the Plaintiff B Dong 13630, respectively.

7) During the above resident registration address of Jung-A, the above 6-17 ground multi-household houses of Dong 6-17, which were moving-in reports on July 18, 2006, consisting of two households from the first to fourth floor, and there is no 303 unit building register, and the above 6-27303 of Dong 6-27, which was moving-in reports on August 16, 2006, were used as the residence of the owner of the building during the period registered as the Plaintiff’s domicile, and the above 16-11 ground buildings of Dong 16-11 which were moving-in reports on December 1, 206 were used as the residence of all other persons than Jung-dong 4 households for the period when they were registered as the Plaintiff’s domicile, while the Plaintiff’s Ka-dong and all other persons than the above 400th and the above 40th and the above 5th and the above 2007 village after the Plaintiff’s residence.

8) On the other hand, the Plaintiff had already leased land BB-dong 17-375 and its ground detached house to the other party before the donation. After the donation, the Plaintiff’s husband and wife or Party A did not have resided in the said house.

[Reasons for Recognition] Evidence Nos. 2 and 13 1, 2, 5, 12, 14, 15, 2, 16, 20, 21 of Evidence Nos. 2 and 13, and the purport of the whole pleadings

(B) Determination

According to Article 89 (1) 3 of the Income Tax Act and Article 154 (1), (2) 3 and (6) of the Enforcement Decree of the Income Tax Act, one household in one house for one household subject to non-taxation of capital gains tax refers to the household comprised by a resident and his spouse together with the family members who make their living at the same address or same place of residence; and the family refers to a lineal ascendant or descendant (including his spouse) and a sibling of the resident and his spouse; those who temporarily left the original domicile or temporary domicile due to the entrance, disease, medical treatment, circumstances of work or business among the household members are included in the family members; Provided, That even if the transferor has no spouse, if the transferor is able to maintain an independent living independently while managing and maintaining the house or land in excess of the minimum cost of living under subparagraph 6 of Article 2 of the National Basic Living Security Act, it is recognized that it constitutes an independent household.

In light of the above facts, it is difficult to view that Plaintiff 1 and his/her husband and wife were in a different place of residence from that of Plaintiff 1 at the time of the transfer of this case, and that Plaintiff 1 and his/her husband and wife were in a different place of residence from that of Plaintiff 2 at the time of the transfer of this case, and that there was approximately KRW 9 million in total with the income of 200,000,000 as seen above. However, as seen above, there were various circumstances revealed in the above facts, i.e., the number of circumstances indicated in the above facts, i., the residential address of Plaintiff 2 at the time of the transfer of this case from February 3, 2006 to the time of the transfer of this case, and it is difficult to view that Plaintiff 2 were in a different place of residence from that of Plaintiff 1 and his/her husband and wife 5 at the time of the above transfer of this case, and there is no other reason to view that Plaintiff 2 had actually resided in the above residential premises at the time of the above time of the transfer of this case.

Therefore, as at the time of the transfer of this case, the Plaintiff and Jeong cannot be said to constitute the separate household unit with the Plaintiff in the status of possessing one house at the time of the transfer of this case, and therefore, the instant house cannot be deemed to constitute one house for one household, and the Plaintiff’s above assertion is without merit.

(2) On the second argument

First, as to whether the Plaintiff repaired the instant house and disbursed the construction cost of KRW 80,000,000 as the construction cost on July 2003, it is not sufficient to recognize it solely with the descriptions of evidence Nos. 9-1, 2, 10, and 11, and there is no other evidence to acknowledge it.

Next, as to whether the Plaintiff paid KRW 20 million to a real estate broker as a brokerage fee in connection with the transfer of this case, according to the statements in Gap evidence Nos. 4 and Eul evidence Nos. 8, it can be acknowledged that the Plaintiff paid KRW 10 million in total as a brokerage fee to a real estate broker who is a real estate broker in connection with the transfer of this case, and KRW 5 million on Dec. 15, 2006. However, the statement in Gap evidence No. 8 alone is insufficient to recognize that the Plaintiff paid KRW 10 million in addition as a brokerage commission, and there is no other evidence to support this.

Therefore, in relation to the transfer of this case, the Plaintiff cannot be deemed to have spent more than KRW 90 million in addition to the above brokerage commission of KRW 10 million as necessary expenses in relation to the transfer of this case. Therefore, the Plaintiff’s assertion is without merit.

(3) Sub-decisions

Ultimately, the Defendant’s disposition on the premise that the instant house, etc. does not constitute one house for one household subject to non-taxation under Article 89(1)3 of the Income Tax Act, and that the necessary expenses to be deducted from the transfer value of the instant house, etc. are KRW 10 million is lawful.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.