2. Litigation costs shall be borne by the plaintiff.

A. A. Around July 7, 1990, the Plaintiff acquired and owns a total of 16-50 square meters of the land area of Jongno-gu Seoul, Jongno-gu and 56-116 and a total of 165.63 square meters of the land area of 165.3 square meters and 81.63 square meters of the 2nd floor, 2nd floor, 80.55 square meters of land, 83.79 square meters of land, and a total of 245.97 square meters of land (hereinafter referred to as “the instant transfer house” in this case) on November 27, 2002. The Plaintiff transferred the instant house to the Kimyang-dong on November 27, 2002. The Plaintiff did not file a transfer income report

B. On the other hand, on July 14, 1999, the Plaintiff acquired the housing of 56-25 square meters in Jongno-gu, Jongno-gu, Seoul and 308.5 square meters in 113.72 square meters in 2 stories in 117.17 square meters in 3 stories, 6.51 square meters in 3 stories, 6.51 square meters in 15.14 square meters in 22.54 square meters in 22.54 square meters in 202.200 square meters in 200 and started construction from that time after obtaining permission to construct a new building on the ground. Accordingly, on January 18, 2001, the Plaintiff newly completed the construction of a new building (6 stories and 1,097 square meters in 200 square meters in 200 square meters in 200 square meters in 195.1 square meters in 200 square meters in 200 or more in 200 square meters in 20.1.

A person shall be appointed.

C. The Defendant, by investigating facts, was in possession of the instant newly constructed house on November 27, 2002, which was at the time of the Plaintiff’s transfer of the instant house as above. When the Defendant newly constructed the instant newly constructed new house and thereafter transferred the instant house, the Plaintiff acquired the instant house before the instant removal and transferred the instant house within three years and four months after the date of new construction, and did not constitute the transfer of the instant transferred house within one year, and did not constitute temporary two houses. On May 26, 2002, the Defendant imposed on the Plaintiff KRW 11,957,340 (transfer value of KRW 268,509,420, acquisition value of KRW 172,39,834, tax base of KRW 60,953,113) as the transfer income tax reverted to May 26, 2002 (hereinafter “instant disposition”).

[Reasons for Recognition] Gap 2 (Real Estate Sales Contract), Gap 3-6 (Certified Copy of Register or Building Management Book), Eul 1 (Resolution of Determination of Transfer Income Tax), the whole purport of pleading

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff asserted as the ground of the instant claim that the Defendant’s disposal of this case inasmuch as the Plaintiff transferred the instant house within 2 years, which is a temporary period for the possession of two houses owned by one household, after building a new building and obtaining approval for the use as above, the transfer income tax cannot be imposed on the transfer of the instant house, the Defendant’s disposal of this case should be revoked unlawfully.

B. Relevant statutes

Income Tax Act

Article 89 (Non-Taxable Transfer Income Tax) shall not be levied on capital gains (hereinafter referred to as "capital gains tax") on the following incomes:

3. One house for one household as prescribed by the Presidential Decree, and the appurtenant thereto;

Income Tax Act

Article 155 (Special Cases in “One House for One Household”)

(1) Where one household having one house in the Republic of Korea has come to possess two houses temporarily by acquiring another house (including cases where it acquires by constructing by itself) before transferring the relevant house, and where it transfers the previous house within one year from the date of acquiring another house (excluding the cases where it is acquired by constructing by himself/herself), it shall be deemed to have one house for one household, and the provisions of Article 154 (1) shall be applied (hereinafter the omission of

The former Enforcement Decree of the Income Tax Act (amended by the Presidential Decree No. 17555 of March 30, 2002)

Article 155 (Special Cases in “One House for One Household”)

(1) Where one household having one house in the Republic of Korea has come to possess two houses temporarily by acquiring another house (including cases where it acquires by constructing a new house by itself) before transferring the relevant house, if it transfers the previous house within two years from the date of acquiring another house (excluding the omission of overall house), it shall be deemed to be one house for one household, and the provisions of Article 154 (1) shall be applied thereto.

Income Tax Act

ADaehan (Presidential Decree No. 17555, March 30, 2002), Addenda

(1) This Decree shall enter into force on the date of its promulgation.

(2) This Decree shall apply to the first transfer after this Decree enters into force.

(3) Where one household which owns one house in Korea under the former provisions of Article 155 (1) at the time this Decree enters into force, acquires another house before transferring such house, and where the permissible period for holding two houses for one household under the former provisions of Article 155 (1) (two years) has not expired, transfers the previous house by the date falling under any of the following subparagraphs, it shall be deemed as one house for one household, and the provisions of Article 154 (1) shall be applied:

1. Where the period from the date on which another house is acquired to the date on which this Decree enters into force does not exceed one year, one year has passed from the enforcement date of this Decree: Provided, That where the former house after the lapse of six months from the enforcement date of this Decree meets the period of possession referred to in Article 154 (1) (referring to the period of residence referred to in subparagraph 1 of the same paragraph, in cases falling under subparagraph 1 of the same paragraph; hereafter referred to as the "period of possession, etc." in this subparagraph), the date on which six months have been added or the date on which two years have elapsed from the acquisition date of such other house, whichever comes earlier; and

2. Where the period from the date of acquiring another house to the date of enforcement of this Decree exceeds one year, two years from the date of acquisition of another house.

(c) Markets:

However, the purpose of Article 155 (1) of the Enforcement Decree of the Income Tax Act is to acquire another house in Korea and temporarily becomes two houses by acquiring it before transferring the said house, within one year from the date of acquisition of the other house - within 2 years before amendment of March 30, 2002 - if the previous house is transferred, the acquisition of the independent house as in this case - the owner of the same house and completed the use inspection by newly constructing the neighborhood living facilities and the house at that place, and on the other hand, the above detached house has already been acquired before it was destroyed, and it cannot be viewed that it constitutes a new house in this case for 19 years after it was newly constructed within 15 (1) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 1755 of March 30, 2002), Article 15 (3) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 17585 of March 30, 2002).

As to this, the Supreme Court Decision cited as above is not the same case as the Plaintiff holding the instant transferred house prior to its removal and new construction, but also dealt with the case of transferring a newly constructed house after the acquisition of another house after the removal and new construction of the house after the acquisition of the new house after the removal and new construction. Accordingly, the Plaintiff’s case is different and not applicable to the Plaintiff. The National Tax Service also states that, if a new house is built through the General Rules 89-15 of the Income Tax Act, the previous house is deemed as one house for one household in the case of transferring the previous house within one year from its completion date. Thus, the Plaintiff’s assertion that the instant transferred house constitutes a non-taxation requirement for one house for one household

① The legislative intent of Article 155(1) of the Enforcement Decree of the Income Tax Act is to relieve the temporary housing of 2 years. It is stipulated that all general cases are subject to capital gains tax if it becomes two houses temporarily in the process of replacing the housing. It is also stipulated that the requirement should be strictly interpreted as possible. ② The Plaintiff’s acquisition of the housing of this case before its removal on July 14, 199 shall be transferred within 2 years, in principle, under the laws and regulations which were enforced at the time of its removal, and it cannot be viewed as non-taxation of 1 house for 9 years after its completion as a new construction (see, e.g., Supreme Court Decision 200Du1999, Jul. 14, 199). The Plaintiff’s assertion that new construction of the housing of this case would be subject to non-taxation for 19 years after its completion, and that new construction of the housing would not be subject to taxation for 1 year after its removal (see, e.g., Supreme Court Decision 2012Da191997.).

In addition, with respect to the time of acquisition of assets, the plaintiff argues that the time of acquisition of the new house should be calculated from the date of acquisition of the new house to the date of delivery of the certificate of completion inspection for the new house pursuant to Article 53 (1) 3 of the former Enforcement Decree of the Income Tax Act (Article 162 (4) of the current Enforcement Decree of the Income Tax Act), and that even in the case of the plaintiff, the time of acquisition of the new house before the removal of this case should be calculated without distinction between the time of acquisition of the new house before the removal of this case and the time of use inspection of the new house, but the above judgment is merely a judgment on the time of acquisition of assets, and it is not applicable to the case of this case that is the time of temporary possession of the two houses for one household. This part of the plaintiff's assertion is not accepted.

Ultimately, the Plaintiff’s assertion is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed, and it is so decided as per Disposition.

Judges Choi Jin-han