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

A. The Plaintiff’s father (the father) Kim K-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-

B. After that, AA died on August 8, 2007, and on March 10, 2009, the registration of ownership transfer was completed due to inheritance due to a consultation division in the name of the next KimB with respect to the instant housing.

C. On September 23, 2008, the Plaintiff transferred the instant land to the O Apartment Housing Reconstruction Project Association in KRW 419,541,650, and the Plaintiff did not report and pay the transfer income tax.

D. Accordingly, on September 13, 2010, the Defendant imposed and notified capital gains tax of KRW 90,642,610 (including additional tax) on the instant land to the Plaintiff on the ground that the transfer of the instant land does not constitute one house non-taxation requirement for one household (hereinafter “instant disposition”).

E. Meanwhile, from May 31, 1980 to May 31, 1980, the Plaintiff formed the same household as the mother A and his family members in the instant house, and resided on November 30, 2008 after the death of the Ansan, but there is no family unit in the same household as the Dong GB.

F. The Plaintiff dissatisfied with the instant disposition and filed a request for review with the Board of Audit and Inspection, but was dismissed on April 14, 201.

[Reasons for Recognition] Facts without dispute, Gap evidence 1, Gap evidence 2-1, Gap evidence 2-3, Gap evidence 4-1 to 3, Gap evidence 5, Eul evidence 1 and 2, the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

Article 98 of the Income Tax Act and Article 162 (1) 5 of the Enforcement Decree of the Income Tax Act do not stipulate whether the transfer date is clearly defined in order to calculate the transfer margin, and whether it constitutes one house for one household. Thus, the Civil Act provisions that the effect of division of inherited property is retroactive to the commencement date of inheritance cannot be applied to the transfer act subject to taxation

Therefore, at the time when the Plaintiff transferred the instant land on September 23, 2008, the Plaintiff was sharing the instant house with the co-inheritors due to the death of the mother, and thereafter, KimB acquired the instant house solely by completing the registration of ownership transfer due to the inheritance by consultation and division on March 10, 2009. Thus, the Plaintiff as the Plaintiff falls under the single house requirement for one household, and the transfer of the instant land, which is the land annexed to the instant house, should be exempted.

Nevertheless, the instant disposition, which was taken on the premise that KimB owned the instant house solely from August 8, 2007, the death date of AlB, was unlawful as it constitutes a retroactive taxation that deemed that the instant disposition was an act of transfer on the date of death of AlB.

B. Relevant statutes

The entry in the attached Form is as specified in the relevant statutes.

C. Determination

(1) According to Article 98 of the former Income Tax Act and Article 162 (1) 5 of the former Enforcement Decree of the Income Tax Act, an exception to the time of acquisition or transfer of "the date of liquidation of the price of the pertinent asset" is the time of acquisition or transfer, and the time of acquisition or transfer of the assets acquired through inheritance or donation shall be the time of such acquisition or transfer. However, in calculating gains on transfer of the assets, the above provision is a legal provision about the time of acquisition or transfer of the assets, but there is no ground to view that the above provision must be applied only when calculating gains on transfer of the assets, and it is also applicable to determining the time of acquisition of the house in order to determine whether the assets are one house for one household (see, e.g., Supreme Court Decision 98Du19155, Nov. 12, 199).

In addition, Article 1015 of the Civil Act provides that "the division of inherited property shall have effect retroactively from the time of the commencement of the inheritance." This means that the property belonging to each co-inheritors by the division of inherited property is already succeeded to a person directly divided from the inheritee at the time of the commencement of the inheritance, and such division does not result in the transfer of inheritance among co-inheritors by the division (see, e.g., Supreme Court Decision 88Meu5836, Sept. 12, 1989).

(2) First of all, in order to be subject to non-taxation for one house for one household under Article 89 (1) 3 of the former Income Tax Act, a household constituting a resident must meet the requirements under Article 154 (1) of the former Enforcement Decree of the Income Tax Act on the premise that the household has one house in Korea as of the date of transfer, and transfers the relevant house or the land annexed to the house. However, since the instant house was completed in the name of KimB on March 10, 209 due to the ownership transfer registration based on a consultation division, the instant house was completed in the name of KimB. Thus, the instant house shall be deemed to have been acquired by KimB solely by inheritance at the time the Ansan, which was the date of commencing the inheritance ( August 8, 2007), when the Plaintiff transferred the instant land ( September 23, 2008), and it is reasonable to view that the instant house was owned by the Plaintiff and KimB, which does not constitute the Plaintiff and the household, thus, the Plaintiff’s disposal of the instant house is lawful.

(3) In addition, the principle of retroactive taxation cannot be applied to the facts of taxation requirements closed prior to the occurrence of the validity of any amendment to the enactment or amendment of tax-related Acts and subordinate statutes, or to the interpretation or guidelines of the tax authority on the relevant laws and regulations (see, e.g., Supreme Court Decision 2001Du10790, Mar. 26, 2004). Since the Plaintiff transferred the instant land on September 23, 2008, it cannot be said that the Plaintiff’s application of the law at the time of transfer of the instant land to the Plaintiff is contrary to the principle of retroactive taxation prohibition unless it applies the law at the time of transfer of the instant land.

(4) Therefore, the Plaintiff’s assertion on a different premise is without merit.

3. Conclusion

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