Residential requirements for one household as non-taxation requirement for one house;

It is not subject to restrictions on the period of possession and the period of residence as a non-taxation requirement for capital gains, but it is premised on the case of moving the residence in Korea to another Si/Gun, and it does not include immigration in the case of moving the residence to another Si/Gun.

Article 89 (Non-Taxable Capital Gains)

Enforcement Decree of the Income Tax Act (Scope of one house for one household) Article 154

2012Gudan24743 Revocation of Disposition of Imposing capital gains tax

AA

a) the Director of the Tax Office

May 29, 2013

July 3, 2013

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The Defendant’s disposition of imposition of KRW 00,00,000 for the transfer income tax of the year 2010 imposed on the Plaintiff on May 12, 2012 is revoked (it is a clerical error in the statement in the complaint on April 12, 2012).

1. Details of the disposition;

A. On June 28, 1995, the Plaintiff acquired ○○○○○ apartment, 527 ○○ apartment, 25 dong 211 (hereinafter “instant apartment”) at KRW 118 million, but the said apartment was reconstructed into ○○○ apartment, 209 dong 1204 (hereinafter “re-building apartment”) and transferred it at KRW 1290 million on December 23, 2010.

B. On January 17, 201, the Plaintiff reported and paid KRW 00,000,000 only for the portion exceeding KRW 900,000,000, which is the transfer of one house by one household, meeting the non-taxation requirements.

C. Since the Plaintiff did not reside in the instant apartment or reconstruction apartment, and did not meet the requirements for ownership for two years, the Defendant excluded the application of non-taxation provisions for one house per household, corrected capital gains tax, and imposed and collected KRW 00,000,000 for capital gains tax for the year 2010 on the Plaintiff on May 12, 2012 (hereinafter “instant disposition”).

D. The Plaintiff dissatisfied with the request for a trial to the Tax Tribunal, but was dismissed on September 14, 2012.

Facts that there is no dispute over the basis of recognition, entry of Gap evidence 1 and 2 (including each number in the documentary evidence; hereinafter the same shall apply), the purport of the whole pleadings

2. The assertion and judgment

A. Summary of the plaintiff's assertion

(1) From the acquisition of the instant apartment to July 2002, the Plaintiff resided in the instant apartment and met the residential requirements for two years from the date of the commencement of reconstruction of the apartment.

(2) The reconstruction period of the instant apartment was spent for a long period from January 2002 to August 2006, and the Plaintiff was studying in the United States for five years and eight months from around January 2005 to August 2010, and this was inevitable due to the circumstances of work, such as the change of work place, and the purport of the proviso of Article 154(1)13 of the Enforcement Decree of the Income Tax Act and Article 71(3) of the Enforcement Rule is deemed to have been transferred due to such unavoidable reasons as the Plaintiff had resided in the housing for one year or more, and it is subject to tax exemption for one house per one household.

(b) Fact of recognition;

(1) The plaintiff is registered as having resided in the following matters on his resident registration from the acquisition of the apartment of this case to the transfer of reconstruction apartment units.

Address

Transfer-Transfer

Seoul ○○-gu ○○○-dong 658 ○ apartment 1, 504

May 31, 1994

December 26, 1995

Seoul ○○-gu ○○-dong 31-5

December 27, 1995

June 15, 2007

Seoul ○○-gu ○○○-dong 527 ○○○ apartment 209 Dong 1204

June 15, 2007

December 23, 2010

Transfer on October 31, 2011

(2) In 196, the Plaintiff joined and worked for BB Co., Ltd. (former CCC Co., Ltd.) located in ○○○ Island in 1996, and was going to study in the United States from January 2005 to August 2010 after the withdrawal of July 2004. The Plaintiff’s entry into and departure from the Republic of Korea is as follows.

Departure Date

date of entry

Period of stay overseas;

(1,610 days in total)

Reasons for overseas stay

January 16, 2005

may 6, 2006

475 days

A master's degree course at a DoDD DDR college in the United States

May 8, 2006

May 17, 2006

9 days

August 22, 2006

December 13, 2006

13 days

U.S. EE EE European University

Doctoral degree course

January 5, 2007

December 15, 2007

344 days

January 8, 2008

August 8, 2008

213 Date

August 23, 2008

September 13, 2009

386 Date

February 13, 2010

February 16, 2010

3 days

May 20, 2010

July 26, 2010

67 days

(3) The Plaintiff used from January 1, 2005 to December 31, 201, which was a U.S. study.

The written request for the Sch Card was served as the ○○-gu ○○-dong Grand apartment in Anyang-gu, where the plaintiff's mother was living.

(4) Meanwhile, around February 28, 2006, the Plaintiff leased the reconstruction apartment to the FF (the above apartment was approved for use on January 27, 2006) and the FF moved into the said apartment with two wife and children and resided on January 17, 2012.

Evidence Nos. 3 through 10, each entry of evidence Nos. 2 through 7, and the purport of the whole pleadings, based on recognition

C. Determination

(1) Whether the Plaintiff resided in the instant apartment for more than two years

(A) As acknowledged earlier, from December 27, 1995 to June 15, 2007, the Plaintiff was subject to a move-in report at ○○○-dong, Seoul, ○○○-dong, 31-5, other than the instant apartment, and was engaged in work at ○○○buk-do, Inc., Ltd., a company located in ○○○○○, from around 1996 to around 2004. First, if the Plaintiff is registered in the resident registration card as residing in another place, the Plaintiff is presumed to have resided in other places than the instant apartment as recorded in the resident registration card (see, e.g., Supreme Court Decisions 85Nu72, Mar. 11, 1986; 85Nu72, Mar. 11, 1986); and as alleged by the Plaintiff, it is difficult to recognize that the Plaintiff had resided in the instant apartment after the acquisition of the instant apartment and resided in the instant apartment from July 2002 to the beginning of that.

(B) Ultimately, there is no evidence to acknowledge the plaintiff's assertion that he had resided in the apartment of this case for more than two years, and the above assertion is without merit.

(2) Whether any inevitable reason exists

(A) Article 89 (1) 3 of the Income Tax Act and the main sentence of Article 154 (1) of the Enforcement Decree of the same Act provide that where one household has one house in Korea as of the date of their departure and where the period of possession is not less than three years (in cases of a house located in Seoul Special Metropolitan City, etc., the period of possession of the relevant house is not less than three years and the period of residence is not less than two years): Provided, That the proviso of Article 154 (1) of the Enforcement Decree shall not be subject to any restriction on the period of possession and residence, and subparagraph 2 (c) of the same Article provides that "where it comes to fall under any of the following subparagraphs, it shall not be subject to any restriction on the period of possession and residence" and "where it moves the house to another Eup under the provisions of Article 2 (3) of the former Enforcement Decree of the Income Tax Act and subparagraph 3 (including cases where it is transferred within 2 years from the date of entry into Korea, and where it is transferred within 3 years from the date of entry into Seoul Special Metropolitan City and rural areas (hereinafter referred to 313).

(B) The interpretation of tax laws and regulations shall be interpreted in accordance with the law, barring any special circumstances, and it shall not be permitted to expand or analogical interpretation without reasonable grounds. In addition, comprehensively taking into account the legislative intent and legislative background of the above provisions, the language and text of the provision, and the structure of the proviso of Article 54(1)2 and subparagraph 3 of the Enforcement Decree, and the systematic relationship between the above subparagraph 3, "where a house is transferred for unavoidable reasons, such as situations of work under Article 71(3)2 of the Enforcement Rule by delegation, it is presumed that the relocation of the house to another Si/Gun does not naturally include the relocation of the house to another Si/Gun under Article 71(3)2 of the Enforcement Rule by delegation (see Supreme Court Decision 2012Du3972, Jul. 5, 2012), and the proviso of the Enforcement Decree of the Income Tax Act, even if the plaintiff, among reconstruction of the apartment house of this case, failed to meet the requirement of residence under Article 15(1)1 of the apartment house reconstruction or the apartment house of this case.

(D) Ultimately, the Plaintiff’s above assertion is without merit.

3. Conclusion

Therefore, the plaintiff's claim seeking the revocation of the disposition of this case is dismissed as it is without merit, and it is so decided as per Disposition.