Seocho 2017west 3283 (Ob. 19, 2018)

'family members living together' who are two houses for one household, not subject to non-taxation.

In the case of a family member who lives together with a child at the time of the transfer of a house and who is a single household, it is not subject to non-taxation.

Article 89 of the former Income Tax Act (Non-taxable Capital Gains)

Article 154 of the former Enforcement Decree of the Income Tax Act (Scope of One House for One Household)

2018Gudan6006 Revocation of Disposition rejecting capital gains tax rectification

AA

a) the Director of the Tax Office

July 17, 2018

October 2, 2018

1. The plaintiff's claim is dismissed.

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

The defendant's rejection disposition of correction of KRW 43,57,071 for the transfer income tax belonging to the year 2016 against the plaintiff shall be revoked.

1. Details of the disposition;

A. On February 3, 200, the Plaintiff acquired and owned ○○○○○○, 1273 △△△ apartment, 501 1204 dong 1204 (hereinafter “the instant first house”) and transferred the same to BB on November 1, 2016, and reported and paid the Defendant the capital gains tax xB on the said transfer.

B. On February 21, 2017, the Plaintiff filed a request for correction to the Defendant on February 21, 2017, that the transfer of the instant first house constitutes a transfer of the instant house by one household under Article 89(1)3(a) of the former Income Tax Act (Amended by Act No. 14389, Dec. 20, 2016; hereinafter the same shall apply) and Article 154(1) of the former Enforcement Decree of the Income Tax Act (Amended by Presidential Decree No. 27653, Dec. 5, 2016; hereinafter the same shall apply) and request for the refund of KRW 43,557,071, which constitutes a non-taxation subject to capital gains tax. However, the Defendant rejected the Plaintiff’s request for correction by deeming that the Plaintiff’s transfer of the instant first house by possessing another house, which is the same household at the time of the transfer of the instant first house, does not constitute “the Plaintiff’s transfer of the instant house” under Article 89(1).

C. The Plaintiff dissatisfied with the instant disposition and filed an appeal on July 5, 2017. However, the Tax Tribunal dismissed the Plaintiff’s appeal on February 19, 2018.

[Ground of recognition] Facts without dispute, Gap evidence 1-1-2, Gap evidence 2-2, the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The parties' assertion

1) The plaintiff's assertion

At the time of the transfer of the first house ( November 1, 2016), the Plaintiff’s domicile at the time of the transfer of the first house of this case (Seoul ○○○○ apartment 729-202, hereinafter referred to as “second house of this case”) is a house owned by CCC that the Plaintiff donated to CCC on October 19, 2016. Although the Plaintiff and CCC’s family members (CCC, their spouse, children, and children) on resident registration are the same household, the Plaintiff and CCC’s family members constitute a separate household whose income is paid for living expenses and whose livelihood is different. The transfer of the first house of this case constitutes the transfer of the first house of one household. The instant disposition based on a different premise is unlawful.

2) The defendant's assertion

A) At the time of concluding a sales contract for the instant housing No. 1, the Plaintiff owned the instant housing No. 2, other than the instant housing No. 1. However, for the purpose of evading the payment of capital gains tax by applying the provision on non-taxation for one household, the Plaintiff received intermediate payments for the instant housing No. 2 and then donated the instant housing No. 2 to CCC before receiving the remainder. In such a case, the determination as to whether the instant housing No. 1 constitutes one house for one household shall be based on the date of the sales contract, not at the time of the transfer date, but at the

B) Even if determined as at the time of the transfer date of the first house, the Plaintiff constitutes two houses for one household, which are “family members sharing the living system with CCC,” and is not subject to non-taxation.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

1) The timing to determine whether a household is one house

According to Article 89(1)3(a) of the former Income Tax Act and Article 154(1) of the former Enforcement Decree of the Income Tax Act, one house for one household exempt from capital gains tax, in principle, means that a household comprised of a resident and his/her spouse together with his/her family members who live together in the same address or same place of residence, has one house in the Republic of Korea as of the date of transfer, and the retention period of the relevant house is at least two years, and there is no other house acquired after the date of acquisition of the relevant house, or there is no other house owned for at least two years for two years with the relevant house.

Therefore, in calculating gains on transfer of assets, Article 98 of the former Income Tax Act that prescribes the time of transfer, and Article 162 of the former Enforcement Decree of the Income Tax Act shall be applied as it is, in calculating gains on transfer of assets, insofar as there are no special provisions regarding decisions on the transfer date (see, e.g., Supreme Court Decisions 95Nu10150, May 16, 1997; 92Nu12988, Jan. 19, 1993).

Therefore, whether the instant first house constitutes “one house for one household” or not should be determined on the basis of the date of the transfer, that is, the date of the settlement of the price of the relevant house, or the date under Article 162 of the former Enforcement Decree of the Income Tax Act. Such other Defendant’s assertion is contrary to the language and purport of the aforementioned statutes, and there is no legal basis (the Supreme Court Decision 94Nu125 Decided September 13, 1994 cited by the Defendant is different from the instant case, and it is not appropriate to be invoked in the instant case), and it is not acceptable to accept it.

2) Whether the Plaintiff lived with CCC at the time of the transfer of the instant housing No. 1

A) From "transfer of one house of one household" subject to exemption from capital gains under Article 89 (1) 3 of the former Income Tax Act and Article 154 (1) of the former Enforcement Decree of the Income Tax Act, "one household" refers to a household comprised of the residents and their spouse together with the family members who share the same livelihood at the same address or same place of residence. In this context, "family members living together with the same household" refers to a family member who actually lives together with the same household, but does not necessarily require the same household on the resident registration, but in daily life, it refers to a family member living together with the same household on the resident registration, so the issue of whether a family living together with the same resident is a family member shall be determined depending on whether he/she actually lives in one household and live together with the same household on the basis of the same resident registration place regardless of the same resident registration place (see, e.g., Supreme Court Decision 88Nu3826, May 23, 1989). The taxpayer bears the burden of proof (see, 205Du3434, 205, etc.

B) According to the following circumstances, although the Plaintiff’s 1st and 2nd and 3th and 1st and 10th and 2nd and the Plaintiff’s 1st and 2nd, it is difficult to view that the Plaintiff’s 1st and 2nd and 0th and 1st and 2nd were to have resided in the 2nd house, including CCC and 1st and 2nd and 3rd and to view that the Plaintiff’s 1st and 2nd and 0th and 1st and the 1st and 1st and 1st and 1st and 2nd were to have been paid for each of the above 1st and 0th and 1st and then, the Plaintiff’s 1st and 2nd and 1st and 2nd were to have been paid for each of the above 2nd and 0th and 1st and then, the Plaintiff’s 1st and 2nd were to have no other reasons to view that the 2nd and 5th and 2nd were to have no other reasons.

3. Conclusion

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

1) On April 19, 2017, the date of disposition stated in the complaint appears to be a clerical error in the statement of the complaint, " April 10, 2017".