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

Cheong-gu Office

The defendant's refusal of correction in attached Form 1, which was made against the plaintiff on September 28, 2016, shall be revoked.

A. Acquisition and transfer of the instant house

1) On January 4, 2002, the Plaintiff newly built and acquired a multi-household house located in O-O-O, 304, 101, and 501 [each of the above houses constitutes a newly-built house under Article 99-3 (1) 1 of the former Restriction of Special Taxation Act (amended by Act No. 6762, Dec. 11, 2002; hereinafter the same shall apply], and subsequently owned the house with the number of head of O-O in Seoul Special Metropolitan City, upon obtaining approval for use from the head of O-O-O, and transferred the house as prescribed by subparagraph 304 on November 10, 2015, the house as prescribed by subparagraph 101, and the house as prescribed by subparagraph 1 of Article 501 to each O-O reconstruction and rearrangement project association.

2) The standard market price of the instant housing in 2007 was publicly announced on April 30, 2007, which was five years after the date of acquisition of the instant housing ( January 4, 2007) by the Plaintiff.

(b) A preliminary return (in substitution of the standard market price in 2007) and a revised return (in substitution of the standard market price in 2006);

1) Article 99-3(1) of the former Restriction of Special Taxation Act provides that "where a resident (excluding a housing construction business operator) transfers a newly-built house falling under any of the following subparagraphs after the lapse of five years from the date of acquisition, the transfer income accrued for five years from the date of acquisition of the newly-built house shall be subtracted from his income amount subject to the transfer income tax." Paragraph (4) of the same Article provides that "in applying the provisions of paragraph (1), the calculation of the transfer income accrued for five years from the date of acquisition of the newly-built house and other necessary matters shall

2) Article 99-3(2) of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 26959, Feb. 5, 2016; hereinafter the same) which is delegated with the method of calculating capital gains accrued for five years from the date of acquisition of a newly-built house to be deducted from income subject to capital gains tax pursuant to the mother Act provides that “The capital gains accrued for five years from the date of acquisition of the newly-built house concerned shall be the amount calculated by applying mutatis mutandis Article 40(1).” The main text and proviso of Article 40(1) of the Enforcement Decree of the Restriction of Special Taxation Act, which applies mutatis mutandis accordingly, are as follows (the provisions are amended by Presidential Decree No. 26070, Feb. 3, 201

The main text of this case (hereinafter referred to as the "main sentence of this case") is "the calculation formula of this case" and "the calculation formula of this case"

"Transfer income accrued for five years from the date of acquisition of real estate subject to restructuring under Article 43 (1) of the Act shall be calculated by the following formula:

The proviso (hereinafter referred to as the "proviso of the Enforcement Decree of this case")

In such cases, "in cases, the immediately preceding standard market price shall apply where the acquisition or transfer is made before the new standard market price is announced or where the date five years from the date of acquisition arrives.

3) With respect to the transfer of the instant house, the Plaintiff: (a) filed a preliminary return and revised return on capital gains tax to the Defendant, as indicated in the table of Paragraph (1) below; (b) preliminary return and revised return form.

4) In calculating the “transfer income amount accruing for five years from the date of acquisition of the instant house” under Article 99-3(1) of the former Restriction of Special Taxation Act, the Plaintiff included the “standard market price on the date five years have elapsed from the date of acquisition” in the calculation formula of this case, and in case of preliminary return, the standard market price in 2007 of the instant house was replaced by the revised return. However, at the time of January 4, 2007, when the revised return was filed, the standard market price in 2007 of the instant house was not publicly announced at the time of January 4, 2007 from the date five years have passed from the date of acquisition of the instant house. Thus, the provision of the proviso of the Enforcement Decree of this case provides that “where five years have elapsed from the date of acquisition before the new standard market price is publicly announced, .”

(c) Disposition of rejecting requests for reduction or correction;

1) On July 29, 2016, the Plaintiff filed a request for a correction of reduction of the amount of capital gains tax for the year 2015 and the capital gains tax for the year 2016 (1) and KRW 85,326,249,2492), respectively, against the Defendant, on the following grounds: (a) on September 28, 2016, the Defendant rejected each of the above requests for correction against the Plaintiff on September 28, 2016.

o. (Units: Won);

Tax year

Preliminary Return

Revised Declaration

Amount of request for reduction and correction (B-1)

Date of Declaration

Amount of tax payable (1)

Date of Declaration

Amount of payable tax (B)

304 HS Heading

2015

January 20, 2016

5,926,730

June 23, 2016

40,661,081

34,734,351

101

2016

March 31, 2016

5,090,536

June 27, 2016

28,859,809

85,326,249

501

March 29, 2016

17,200,027

June 24, 2016

78,757,003

2) The Plaintiff filed an objection against the instant disposition with the Defendant, but the objection was dismissed on January 26, 2017. On May 1, 2017, the Plaintiff filed an appeal with the Tax Tribunal, but the appeal was dismissed on July 4, 2017.

3) Since then, the Defendant issued a disposition to increase capital gains tax to KRW 40,63,016 on July 1, 2018 on the ground of an error in calculating the amount of income tax accrued in the year 2015 (transfer of housing No. 304), but issued a disposition to reduce capital gains tax to KRW 39,425,505 on December 4, 2018 on the ground of the error in calculating the standard market price at the time of acquisition and the amount of income subject to abatement or exemption. ② The Defendant issued a disposition to reduce capital gains tax to KRW 104,890,764 on December 4, 2018 on the ground of the difference in calculating the standard market price at the time of acquisition and the amount of income subject to abatement or exemption (the aforementioned part of capital gains tax pertaining to KRW 104,890,764 on September 28, 2016).

Facts without dispute over the basis of recognition, Gap evidence 1 through 8, Eul evidence 1 through 7 (including branch numbers; hereinafter the same shall apply) and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. Summary of the plaintiff's assertion

In the meantime, according to the proviso of the Enforcement Decree of this case, where the new standard market price has not been publicly announced when the five years from the date of acquisition of newly-built house under Article 99-3(1) of the former Restriction of Special Taxation Act comes into existence, the standard market price in the calculation formula of this case shall be replaced by the "standard market price in the year to which the fourth anniversary of the acquisition date belongs" belongs. Although the parent law provides that the amount of capital gains generated between the 5 years from the date of acquisition of the newly-built house should be deducted, it shall be deducted by the "4 years from the date of acquisition" as a result, according to the proviso of the Enforcement Decree of this case. Accordingly, the proviso of the Enforcement Decree of this case exceeds the scope of delegation stipulated by the mother law, and the disposition of this case based on the proviso

Preliminaryly, even if the proviso of the Enforcement Decree of this case complies with the scope of delegation by the mother law, the provision of the proviso of this case was newly established as amended by Presidential Decree No. 26070 on February 3, 2015 after the Plaintiff acquired the instant house, and the Enforcement Decree of the Restriction of Special Taxation Act was amended by Presidential Decree No. 26070 on February 3, 2015. Therefore, the need to protect the Plaintiff’s trust in the existence of the former provision of the proviso of the Enforcement Decree of this case is greater than the public interest demand for the application of the proviso of the Enforcement Decree of this case. Accordingly, the proviso of the Enforcement Decree of this case violates the principle of trust protection. As a result, the provision of the proviso of this case violates the principle of trust protection by ensuring that the purchaser of the taxable object

B. Relevant statutes

Attached 2. The entry in the relevant Acts and subordinate statutes shall be as follows.

C. Determination

1) Judgment on the primary argument (the assertion of violation of the prohibition of delegation of legislation)

A) One of the important criteria for determining whether a provision of the Enforcement Decree goes beyond the scope of delegation by the mother law is predictability. This means that the contents of the Enforcement Decree in question are already and specifically delegated by the mother law itself. The existence of predictability must not be determined by only one of the pertinent specific provisions, but should be determined by systematically and systematically considering the legislative intent of the Act (see Supreme Court Decision 2006Du19570, Nov. 27, 2008). If it is not clear whether a provision of the Enforcement Decree is inconsistent with the mother law, it should not be declared as null and void because it can be interpreted to be consistent with the mother law by comprehensively examining other provisions of the mother law and the Enforcement Decree, legislative intent, and history thereof. This legal doctrine means that the unification of the nation itself constitutes the unification of the nation, and thus, it should not be deemed as being in conflict with the principle of law of law enforcement and the principle of law enforcement, which should be deemed as being null and void, and thus, it should not be deemed as being in conflict with the principle of law enforcement by the mother law.

B) In light of the following circumstances that can be seen by systematically and systematically integrating the provisions of the mother law and the main text and proviso of the Enforcement Decree of this case, the provisions of the instant proviso of the Enforcement Decree cannot be deemed as invalid beyond the scope of delegation under the mother law. Therefore, the Plaintiff’s assertion on this part is without merit.

(1) The parent law delegates the method of calculating "transfer income accrued for five years from the date of acquiring a house." Articles 2(2) and 3(1)1 of the former Restriction of Special Taxation Act provides that "transfer income shall be governed by the Income Tax Act." The former Income Tax Act (amended by Act No. 14389, Dec. 20, 2016; hereinafter the same shall apply) provides that "transfer income shall be calculated by subtracting the special deduction for long-term holding from transfer margin after deducting necessary expenses from transfer income (Article 95(1) of the same Act). In calculating transfer income, transfer income shall be calculated based on the actual transaction value, but in cases of estimation due to the lack of recognition or verification of actual transaction value, transfer income shall be calculated based on the standard market price (Article 96, 97, 99, 100, and 114 of the same Act). In addition, Article 164(3) of the Enforcement Decree of the Income Tax Act provides for the purport that the new standard market price is transferred prior to the acquisition or new standard market price.

② Inasmuch as Article 164(3) of the Enforcement Decree of the Income Tax Act provides that if the standard market price of the current year is not publicly announced, it may be deemed unreasonable in that the standard market price of the immediately preceding year may be the same as that determined by the acquisition and transfer value at the time of filing a return of transfer income tax later (in particular, the standard market price at the time of acquisition is likely to be publicly announced at the time of filing a return). However, the provisions of the Enforcement Decree of the Income Tax Act purported to ensure legal stability and predictability by allowing a taxpayer or a tax authority to anticipate a tax legal relationship in advance or at an early stage, thereby ensuring legal stability and predictability (see, e.g., Supreme Court Decisions 97Nu629, Feb. 9, 199; 201Do5316, Nov. 19, 2001).

③ Under the main text and proviso of the Enforcement Decree of this case, the method of estimating capital gains accrued for five years with the delegation of the mother law by applying the standard market price. Therefore, in light of the content of the mother law as seen earlier, the content, structure, and purport of the statutes related to the calculation of capital gains under the income tax law governed by the mother law, and the above legal principles, it is reasonable to view that setting the provisions of the proviso of the Enforcement Decree of this case to the same purport as those of the above income tax law in order to ensure legal stability and predictability as to the amount of capital gains accrued for five years by applying the standard market price,

④ In order to ensure legal stability and predictability, the proviso of the Enforcement Decree of the instant case provides for the method of applying the standard market price in preparation for cases where the standard market price of the pertinent year is not publicly announced on the basis of the fifth anniversary of the date of acquisition.

Therefore, in a case where, applying the proviso to the Enforcement Decree of this case, the immediately preceding standard market price was applied, but the continuous increase in the standard market price brought about the result of deducting the transfer income tax for the period of four years, not the increase in the amount of five years, and thus, it cannot be deemed that the provisions of the proviso to the Enforcement Decree of this case stipulate that the transfer income tax shall be deducted for five years. This is likewise applicable in a case where the standard market price for five years from the date of acquisition is determined later. This is because the reasonable issue of applying the standard market price specifically and specifically in a case where the estimated market price should be assessed based on the standard market price as an exception to the principle of actual transaction tax in the transfer income tax is ultimately a matter of legislative policy determination, the issue of how to apply the standard market price can be applied in favor of or unfavorably to a taxpayer, depending on whether or not the standard market price of the year concerned at the time of acquisition or transfer, and whether or not the standard market price of each year at the date of five years from the date of acquisition

⑤ Supreme Court Decision 2012Du8588 Decided January 31, 2013 cited by the Plaintiff is also estimated to estimate capital gains from the date five years have elapsed since the parent law and the main text of the Enforcement Decree of this case acquired, so it is desirable to apply the standard market price of each year to increase its validity, and it cannot be viewed as a judgment with the purport that the standard market price of the year in which the date five years have elapsed without the Plaintiff’s assertion. Furthermore, the purport that the above exceptional provision cannot be applied by analogy and extension under the circumstances where there is no provision like the proviso of the Enforcement Decree of this case, and that the validity of the provision of the proviso of the Enforcement Decree of this case is not denied.

2) Determination as to the conjunctive assertion (the assertion that violates the principle of trust protection and the principle of fair taxation)

A) Determination on the assertion of violation of the principle of trust protection

In the amendment of a law, if the public interest purpose to achieve a new legislation is not justified because the trust of the parties to the former legal order is reasonable, reasonable, and the damage of the parties caused by the amendment of a law is so severe that the destruction of trust of such parties cannot be justified, such new legislation may not be allowed in light of the principle of trust protection. However, since the need following changes in social environment or economic conditions has to change flexibly, and there is unavoidable conflict of interest between the changed new legal order and the existing legal order, all the expectations and trust of the citizens are not to be protected as constitutional rights, and there is a need to protect the continuation of the amended law and system as rational and reasonable trust of individuals is recognized (see, e.g., Constitutional Court Order 92Hun-Ma68, Oct. 1, 1992).

In accordance with the foregoing legal doctrine, this case’s tax law is deemed as a matter of principle. Since the State’s need to flexibly and reasonably operate tax and financial policies in the field of tax law, as such, tax laws and systems are inevitably changed flexibly, barring any special circumstance to actively form a new legal relationship based on trust in accordance with the old law, taxpayers cannot expect or trust the current tax law, such as tax rates, in principle. Generally, even if the establishment of a new taxable object or change of the method of calculating tax rates or tax base is expected that the transfer of property after the amendment would not be subject to a continuous change in the laws and regulations at the time of acquisition, it cannot be deemed as legally protected trust. Since the proviso of the Enforcement Decree of this case’s tax law was already implemented on February 3, 2015, it appears that the Plaintiff could have been able to apply the standards when transferring the housing of this case, and thus, the point at which the Plaintiff’s obligation to pay capital gains tax to the Plaintiff came into force after the enforcement date of the proviso of the Enforcement Decree of this case’s tax law. In addition, the Plaintiff’s expectation and trust provision of the Enforcement Decree of this case’s provision cannot be applied for 207 years.

B) Determination on the assertion of violation of the principle of fair taxation

The principle of tax equality is an expression of tax law on the principle of equality or the principle of prohibition of discrimination under Article 11(1) of the Constitution, which is not an absolute equality to the citizens, but an expression of tax law that prohibits discrimination without reasonable grounds. As such, legal discrimination commensurate with the essential difference of the subject matter to be regulated cannot be deemed to violate the principle of tax equality as long as the discrimination is reasonable.

In light of the above legal principles, the instant proviso, which stipulates that the standard market price is based on the immediately preceding standard market price in order to ensure legal stability and predictability in light of the legislative purport of the parent law, and relevant income tax law, does not seem to have any special circumstance to view that the provisions of the instant proviso of the Enforcement Decree, which stipulate that the standard market price should be based on the immediately preceding standard market price itself, are unreasonable or arbitrary standards. Furthermore, even if the amount of tax varies after the advance of the time of transfer of assets as of the enforcement date due to the establishment of the proviso of the Enforcement Decree of the instant case, even if the amount of tax differs depending on the nature of the tax law, which has very limited characteristics for the flexible and rational operation of tax and financial policies, this is an inevitable result from the application of new laws and regulations, and thus, it cannot be deemed as violating the principle of equality. Therefore, the Plaintiff’s assertion on this part is rejected as it cannot be viewed as violating the principle of tax fairness under the Constitution.

3) Therefore, we cannot accept all the Plaintiff’s assertion, and the instant disposition is lawful.

3. Conclusion

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

(i)the portion of the housing No. 304 that was transferred to the taxable year 2015;

(ii)the housing of heading 101 and the housing of heading 501 that are transferred in the year 2016;