Cho High Court Decision 201Do5144 (Law No. 112, 2012.029)

Where the previous house is transferred to the same household member after the acquisition of a new house, the special provisions on temporary two houses shall not be applied.

In the case of transferring the previous house to the same household member after the acquisition of the new house, the acquisition of the new house cannot be deemed as the acquisition of the new house, and it is difficult to recognize that the relevant household has two houses after the transfer of the previous house, so it is difficult to apply the special provisions on temporary two houses and to recognize that it is not the same household member.

2012Gudan12276 Revocation of Disposition of Imposing capital gains tax

XX

Head of Geumcheon Tax Office

September 14, 2012

November 30, 2012

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of capital gains tax of 000 won against the Plaintiff on October 17, 2011 is revoked (as stated in the written complaint’s claim, “ October 15, 201” is a clerical error in writing in October 17, 201, and “00 won” is a clerical error in writing of “00 won.”

1. Details of the disposition;

A. On June 15, 2001, the Plaintiff acquired and resided in XX apartment 000 Dong 00000 (hereinafter “the first house of this case”) from the Seoul Special Metropolitan City, Gwanak-gu, Seoul Special Metropolitan City, and subsequently acquired new apartment 00 Dong 00000 Dong 2000 (hereinafter “the second house of this case”) on June 5, 2008, and transferred the first house of this case to Gamba who is his father, and had 000 won take over the obligations, such as the lease deposit, with respect to the first house of this case. Accordingly, the Plaintiff reported and paid KRW 00 on September 30, 2010, but did not report the transfer income tax on the onerous donation due to the donee’s assumption of obligation.

B. In applying the special provisions of one household with respect to one house for temporary two houses as stipulated in Article 155(1) of the Enforcement Decree of the Income Tax Act, where the Defendant transfers the previous house to the same household member after acquiring a new house, the said special provisions are not applicable. On October 17, 2011, ParkA excluded the application of the said special provisions on the ground that it is a member of the same household as the Plaintiff, and issued the instant disposition imposing KRW 00 of the transfer income tax for the portion of onerous donation to the Plaintiff for the year 2010.

[Ground of recognition] Facts without dispute, Gap evidence No. 1, Eul evidence No. 1, 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 Although the special provisions on one house per household for one temporary two houses as stipulated in Article 155(1) of the Enforcement Decree of the Income Tax Act do not require one house for one household after transfer, the Defendant erroneously interpreted that such requirements exist.

② Even if it is not so, ParkA constitutes a case where it is possible to maintain an independent living in managing and maintaining the housing or land, the income under Article 4 of the Enforcement Decree of the Income Tax Act is at least the minimum cost of living under subparagraph 6 of Article 2 of the National Basic Living Security Act, and thus, it shall be deemed as an independent household regardless of whether it makes a living at the same address or residence as the Plaintiff, and thus, it shall not be the same household as the Plaintiff.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(1) Judgment as to the Plaintiff’s assertion

Article 155 (1) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 22185, Jun. 8, 2010; hereinafter the same) provides that "where one household which owns one house in Korea temporarily becomes two houses by acquiring another house before transferring the house, it shall be deemed as one house for one household, and Article 154 (1) shall apply to the previous house if it is transferred within two years from the date another house is acquired. The purport of the above special rule is that where one household owns one house and becomes two houses temporarily in the process of acquiring another house, the former house is treated as one house under certain conditions. The above special rule is that the Plaintiff and the new house is not subject to the transfer income tax after transferring the previous house, and the Plaintiff’s previous house is not subject to the transfer income tax after transferring the house, and thus, it cannot be deemed that the Plaintiff’s new house is not subject to the transfer income tax after transferring the house to the same household, and thus, the Plaintiff’s assertion that the previous house is not subject to the transfer of one house after transferring the house cannot be applied to the transfer.

(2) Judgment on the Plaintiff’s assertion

The legislative purport of Article 154 (2) of the former Enforcement Decree of the Income Tax Act is to solve the problem of limiting the number of a resident who can form one household to which Article 154 (1) of the former Enforcement Decree of the Income Tax Act can be subject to the special case of non-taxation for one house for one household. Therefore, it is reasonable to consider that Article 154 (2) of the former Enforcement Decree of the Income Tax Act can form one household to which the said special case can be applied even if the resident is 30 or more years old, or his spouse dies or is divorced, or if the resident is able to maintain his own livelihood with an independent resident at a level of minimum cost of living, even if the resident without his spouse meets the above requirements, and if the resident has lived with the same address or residence as that of the other resident and his spouse, it shall not be deemed that the plaintiff's previous house is not subject to the special case of Article 154 (1) of the former Enforcement Decree of the Income Tax Act (Article 154 (2) of the former Enforcement Decree of the Income Tax Act).

3. Conclusion

Thus, the plaintiff's claim is dismissed as it is without merit.