The costs of appeal are assessed against the Plaintiff.

[Tgu High Court 2007Nu635 ( October 26, 2007)]

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

Evidence Nos. 1, 2, 3, Eul evidence Nos. 1, 2, 2, 3, 3-1 through 6, 8, 9, 4, each entry of evidence Nos. 4, and the purport of the whole pleadings

A. On April 6, 1988, the Plaintiff acquired two houses (one story 87.31 square meters, two stories, 41.02 square meters, underground workplaces, 102.7 square meters; hereinafter referred to as "house of this case") from ○○○○○○, ○○○-dong, 247-10 square meters, and cement brick and brick structure and 234.7 square meters on its ground, and completed the registration of ownership transfer among the remaining housing sites of this case, which were paid KRW 260 million on February 2, 2004, when he resided in the same area from ○○○○-si, ○○○○-dong, 234.7 square meters on its ground, and completed the registration of ownership transfer on the instant house of this case on February 3, 2004, KRW 2000,0000,000 among the remainder of the housing site of this case, KRW 3.4 million on February 16, 2004;

B. On February 5, 2004, the Plaintiff entered into a sales contract with the ○○○○○○○○○, 1241-22, 234.4m2, and the third floor retail stores and housing (hereinafter referred to as “first apartment”) of cement bricks, bricks, slive roof, and the third floor retail stores and housing (hereinafter referred to as “first apartment”) with the purchase price as KRW 18,781,00,000, and paid the purchase price in full to the ○○○○ by March 18, 2004, and completed the registration of ownership transfer as to the first apartment on March 18, 2004 in the future of the Plaintiff.

C. On February 6, 2004, the Plaintiff’s husband, ○○○○○○-dong 1486-29, 149.1 square meters and multi-household housing on the third floor of cement brick sloping roof (hereinafter “second-class housing”) entered into a sales contract with the Plaintiff’s husband at KRW 11,6150,00,00, and completed the registration of ownership transfer as to the second house on April 1, 2004.

D. Around June 9, 2005, the Defendant announced the Plaintiff that the transfer of the instant house constitutes a transfer of assets subject to actual taxation, and that he filed a return after the deadline. On June 24, 2005, the Plaintiff reported to the Defendant on June 24, 2005, that the transfer of the instant house constitutes a transfer of one house for one household under the Income Tax Act, and thus, the transfer income tax base and its tax amount are nonexistent.

E. However, on January 2, 2006, the Defendant issued a disposition imposing capital gains tax of 62,216,676 won and additional tax of 9,824,012 won to the Plaintiff on the ground that the transfer of the instant house does not fall under the transfer of one house for one household under the Income Tax Act, since the Plaintiff and ○○○○, her husband, owned three houses for one household on April 19, 2004 at the time of the transfer of the instant house (hereinafter “instant disposition”).

2. Whether the disposition is lawful;

A. The parties' assertion

As to the Defendant’s assertion that the disposition of this case is lawful on the grounds of the above disposition and relevant statutes, the Plaintiff asserted that the disposition of this case is unlawful on the following grounds.

(1) Article 154(1) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 18705, Feb. 19, 2005; hereinafter referred to as the "Enforcement Decree") provides that "transfer date" means "the date when a contract for transfer is concluded" rather than "the date when the price is settled". Thus, the transfer of the instant house constitutes one house for one household and thus is exempt from taxation.

Luxembourg, while selling the instant house, the Plaintiff acquired the instant house Nos. 1 and 2 with her husband’s ○ for the purpose of moving the residence and his children’s school convenience, and Kim○○ acquired the ownership transfer registration with respect to the newly acquired house as a result of the law being delayed the payment of the remainder of the instant house. The Plaintiff’s situation is not different from the case of “three houses for one household temporarily,” and it is not a “three houses for one household temporarily,” and thus, Article 155(1) of the Enforcement Decree of the Act, which is a provision that is exempt from taxation for two houses for one household temporarily, should apply mutatis mutandis to the income accrued from the transfer of the instant house.

Article 162-2(5) of the Enforcement Decree of the Fidelity shall be interpreted to limit the application of Article 162-2(5) to three houses for one household of speculative purpose. The Plaintiff sold the instant house under the status of only one house. However, since the receipt of the balance was completed after the payment of the balance for the first and second houses due to the delay in the payment of the balance of Kim ○○, the transfer margin does not fall under the real estate transaction for speculative purpose, and it does not fall under the real estate transaction for speculative purpose, the transfer margin shall be calculated based on the standard market

⑷ 세법상 가산세는 정당한 사유가 있는 경우에는 이를 부과할 수 없는데, 18년 동안 이 사건 주택을 보유하다가 김○○에게 이를 양도한 원고로서는 세법을 잘 알지 못하여 당연히 김○○와의 사이에 이 사건 주택에 관한 매매계약을 체결할 당시에는 1세대 1주택이어서 이 사건 주택의 양도가 양도소득세 비과세 대상이라고 판단할 수밖에 없었으므로, 원고가 법정기한 내에 이 사건 주택의 양도에 관한 양도소득세를 신고⦁납부하지 못한 데에 정당한 사유가 있다 할 것이어서 가산세 부과처분은 위법하다.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(i) argument on the decision of transfer date under Article 154(1) of the Enforcement Decree

㈎ 시행령 제154조 제1항의 양도일의 결정에 관하여는 달리 특별한 규정을 두고 있지 아니하므로 자산의 양도차익을 계산함에 있어서 취득시기 및 양도시기를 규정한 구 소득세법(2005. 12. 31. 법률 제7835호로 개정되기 전의 것, 이하 '법'이라고 줄여 쓴다.) 제98조, 시행령 제162조가 그대로 적용된다고 봄이 상당하다 할 것인데(대법원 2001. 7. 13. 선고 2000두1263 판결 등 참조), 시행령 제162조 제1항에 의하면 취득시기 및 양도시기는 원칙적으로 당해 자산의 대금을 청산한 날로 하도록 되어 있다.

㈏ 따라서, 시행령 제154조 제1항의 '양도일'은 '대금을 청산한 날'이 아니라 '양도계약을 체결한 날'을 의미하는 것으로 해석되어야 한다는 원고의 주장은 이유 없다.

Article 155(1) of the Enforcement Decree of the Do governor concerning analogical application

㈎ 조세법률주의의 원칙상 과세요건이거나 비과세요건 또는 조세감면요건을 막론하고 조세법규의 해석은 특별한 사정이 없는 한 법문대로 해석할 것이고, 합리적 이유 없이 확장해석하거나 유추해석하는 것은 허용되지 아니하며, 특히 감면요건 규정 가운데에 명백히 특혜규정이라고 볼 수 있는 것은 엄격하게 해석하는 것이 조세공평의 원칙에도 부합한다(대법원 2004. 5. 28. 선고 2003두7392 판결 등 참조).

㈏ 시행령 제155조 제1항은 국내에 1주택을 소유한 1세대가 그 주택을 양도하기 전에 다른 주택을 취득함으로써 일시적으로 2주택이 된 경우에 적용되는 규정으로써 원고는 이 사건 주택의 양도일인 2004. 4. 19. 당시 자신 및 남편 명의로 이 사건 주택과 제1, 2주택을 소유함으로써 1세대 3주택을 보유하고 있어 위 규정의 적용대상에 해당하지 않고, 엄격해석의 원칙상 시행령 제155조 제1항을 유추적용하는 것도 허용되지 않는다 할 것이므로, 원고의 이 부분 주장 역시 이유 없다.

Article 162-2(5) of the Enforcement Decree of the International Act shall be interpreted to limit the application to three houses for one household of speculative purpose.

㈎ 시행령 제162조의2 제5항은 "법 제96조 제1항 제7호에서 '대통령령이 정하는 경우'라 함은 3주택 이상을 소유한 1세대가 주택을 양도하는 경우를 말한다"라고 규정하고 있는데, 조세법률주의의 원칙상 조세법규의 해석은 특별한 사정이 없는 한 법문대로 해석할 것이고 합리적 이유 없이 확장해석하거나 유추해석하는 것은 허용되지 않으므로, 위 규정의 3주택 이상을 소유한 1세대를 투기목적으로 소유하는 경우에 한정하여 해석할 수 없다.

㈏ 따라서, 시행령 제162조의2 제5항의 적용대상은 투기목적의 1세대 3주택으로 한정하는 것으로 해석되어야 함을 전제로 하는 원고의 이 부분 주장 역시 이유 없다.

Applicant that the imposition of penalty tax is illegal

㈎ 세법상 가산세는 과세권의 행사 및 조세채권의 실현을 용이하게 하기 위하여 납세자가 정당한 이유 없이 법에 규정된 신고⦁납세의무 등 각종 의무를 위반한 경우에 개별 세법이 정하는 바에 따라 부과되는 행정상의 제재로서 납세자의 고의⦁과실은 고려되지 않는 반면, 이와 같은 제재는 납세의무자가 그 의무를 알지 못한 것이 무리가 아니었다고 할 수 있어 그를 정당시할 수 있는 사정이 있거나 그 의무의 이행을 당사자에게 기대하는 것이 무리라고 하는 사정이 있을 때 등 그 의무해태를 탓할 수 없는 정당한 사유가 있는 경우에는 그 부과를 면할 수 있으나(대법원 2005. 4. 15. 선고 2003두4089 판결, 1995. 11. 14. 선고 95누10181 판결 등 참조)

㈏ 따라서, 원고가 세법을 잘 알지 못하여 이 사건 주택의 양도가 양도소득세 비과세 대상이라고 판단할 수밖에 없었다 하더라도 이를 원고의 의무해태를 탓할 수 없는 정당한 사유가 있는 경우라고 볼 수는 없으므로, 원고의 이 부분 주장 역시 이유 없다.

(v)whether the instant disposition is legitimate;

Ultimately, since the Plaintiff and ○○○, her husband, owned three houses for one household by owning the instant house and the first and second houses on April 19, 2004, which were at the time of the transfer of the instant house, the instant disposition is lawful for the reason that the Defendant’s transfer of the instant house does not constitute a “one house for one household as prescribed by the Act,” and thus is not subject to non-taxation of capital gains tax.

3. Conclusion

Therefore, the plaintiff's claim of this case shall be dismissed as it is without merit, and the judgment of the court of first instance is just and it is so decided as per Disposition.

Related Acts and subordinate statutes

The actual provisions of the former Income Tax Act (amended by Act No. 7837 of Dec. 31, 2005) shall apply.

Article 89 (hereinafter referred to as “transfer income tax”) shall not be levied on the following incomes:

3. Income accruing from transfer of one house for one household as prescribed by the Presidential Decree (excluding expensive houses whose prices exceed the standard prescribed by the Presidential Decree) and the appurtenant land within the area calculated by multiplying the area of the land on which the building is built by the ratio as determined by region under the Presidential Decree (hereafter in this Article, referred to as the “land annexed to the house”);

Article 94 Scope of Transfer Income

(1) Transfer income shall be the following incomes generated in the relevant year:

1. Income accruing from transfer of land (referring to a lot of land subject to registration of land category in the cadastral record under the Cadastral Act) or buildings (including the facilities and structures annexed to such buildings);

Article 96 Transfer Price

(1) The transfer value of assets referred to in Article 94 (1) 1 and 2 shall be the standard market value at the time of transfer of the assets concerned: Provided, That where the assets concerned fall under any of the following subparagraphs, the actual transaction value between the transferor and transferee (hereinafter referred to as “actual transaction value”) shall apply:

7. Other cases prescribed by Presidential Decree in consideration of types, holding period, number of assets held, scale of transaction, transaction methods, etc. of the relevant assets.

Article 98 Time of Transfer or Acquisition

In calculating gains on transfer of assets, the time of acquisition and transfer shall be determined by Presidential Decree.

Article 104 (Rate of Transfer Income Tax)

(1) A resident shall pay his/her tax amount calculated by applying the tax rates under the following subparagraphs to the tax base of transfer income in the current year (hereinafter referred to as "calculated tax amount of transfer income"). In such cases, when one asset falls under two or more of the tax rates under the following subparagraphs, the highest tax rate shall apply thereto:

2-3. Housing falling under one of three houses or more for one household as prescribed by the Presidential Decree (including land annexed thereto; hereafter in this Article the same shall apply);

60/100 of the tax base of transfer income;

Article 115:Additional Tax on Transfer Income Tax

(1) Where a resident fails to file a final return or files a return of any amount short of the income amount to be returned, the amount equivalent to 10/100 of the amount calculated by multiplying the calculated tax amount by the ratio of the income amount not returned or short of the amount to be returned to the transfer income amount (hereinafter referred to as "amount of additional tax on negligent tax returns") to the calculated

(2) If a resident fails to pay the transfer income tax amount under Article 111 or pays it below the payable tax amount, the amount calculated by applying the rate prescribed by the Presidential Decree in consideration of the interest rate on loans in arrears by financial institutions to the unpaid tax amount (hereinafter referred to as the "additional paid tax amount") shall be added

The actual provisions of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 18705 of Feb. 19, 2005)

§ 154. Scope of housing for one household

(1) The term “one house for one household prescribed by the Presidential Decree” in subparagraph 3 of Article 89 of the Act means the case where a household comprised by a resident and his spouse together with the family members living together with him at the same address or same residence (hereinafter referred to as “one household”) in Korea as of the transfer date, and where the relevant house is held for not less than 3 years (in the case of the house located in the area of subdivision, day delivery, square village, mountain village, mountain village, and new urban area designated and publicly notified as a planned area for housing site development under Article 3 of the Housing Site Development Promotion Act, the relevant house whose retention period is not less than 3 years and whose retention period is not less than 2 years during the retention period): Provided, That where one household possesses one house in Korea as of the transfer date and falls under any of the following subparagraphs, it shall not be subject to the restriction on the retention period and residing period:

§ 155. Special case of housing for one household:

(1) Where one household which has one house in Korea comes to possess two houses temporarily by acquiring another house (including the case where it acquires by constructing by itself) before transferring the relevant house, if it transfers the previous house within one year (including the case where unable to transfer within one year, and which falls under the causes as determined by the Ordinance of the Ministry of Finance and Economy) from the date of acquiring another house, it shall be regarded as one house for one household, and the provisions of Article 154 (1) shall be applicable. In this case, where a part of previous house and appurtenant land is purchased by consultation or expropriated under Article 154 (1) 2 (a), and where it transfers the relevant remaining house and appurtenant land within two years from the date of such transfer or expropriation, the transfer of relevant remaining house and appurtenant land shall be deemed to be included in the transfer or expropriation of the previous house and appurtenant land

§ 162. Time of transfer or acquisition

(1) The time of acquisition and transfer under Article 98 of the Act shall be the date of liquidation of the price of relevant assets (if the transferee agrees to bear the capital gains tax and additional tax of capital gains tax on the transfer of relevant assets, excluding such capital gains tax and additional tax of capital gains tax) except in the following cases:

1. Where the date of the settlement of price is not clear, the date of registration, receipt of registration, or transfer date entered in the register, registry, list, etc.;

2. Where registration of transfer of ownership (including registration and statements of change of name) has been made before the price is settled, the date of receipt of the registration entered in the register, register, list, etc.;

Article 162-2 Transfer Price

(5) The term “cases prescribed by the Presidential Decree” in Article 96 (1) 7 of the Act means the case where one household possessing three or more houses transfers the house (including the land appurtenant thereto). In this case, the provisions of Article 155 (15) shall apply mutatis mutandis to the calculation of the number of houses in a multi-family house (limited to the case where residents select), and the provisions of Article 154 (9) shall apply mutatis mutandis to the method of determining the transfer house where two or more houses are transferred on the same day.

Article 178 (Computation of Additional Tax on Transfer Income Tax)

(1) The amount of income to be reported under Article 115 (1) of the Act, shall be the amount determined or adjusted by the director of the regional tax office or the director of the regional tax office.

(2) The provisions of Article 146 (1) and (2) shall apply mutatis mutandis to the amount short of the income amount to be returned under Article 115 (1) of the Act.

(3) "Rate prescribed by Presidential Decree" in Article 115 (2) of the Act means the rate of 3/10,000 per day for the period from the day following the payment deadline to the date of voluntary payment or notification.