2.Gla ○○

2. The plaintiffs shall bear the litigation costs.

On April 1, 2009, the Defendant confirmed that the part exceeding KRW 214,283,480 in the imposition of capital gains tax for the year 2007 for the Plaintiff KimCC is null and void.

A. Plaintiff 00,00,00

(1) The plaintiff was the owner of ○○○-dong 208-19 Ground Housing (hereinafter referred to as the "First Housing") in ○○-si ○○○-dong 208-19.

(2) On April 2, 2004, the first house of this case was included in the housing site development project district of ○○○○○ District and was expropriated by the Korea Land Corporation, which is the project operator, the Plaintiff 0A received 22,081,000 won compensation for the first house of this case on April 14, 2004. On January 11, 2007, the Plaintiff was confirmed and decided as the person subject to relocation measures and received 451,820,000 won for the sale price of the first house of this case on March 13, 207 (hereinafter “the first housing site of this case”).

(3) After paying KRW 45,182,00 for the sales contract for the instant housing site, the Plaintiff, on July 27, 2007, transferred the sales contract for the instant housing site No. 1 to the GimB at KRW 505,550,00 ( separate amount of KRW 320,000 for advance payment in 2005), and on October 1, 2007, upon filing a preliminary return for the transfer income tax on October 1, 2007, the Plaintiff reported and paid KRW 451,820,00 for the acquisition value of the instant housing site No. 1 at KRW 505,50 for the transfer income tax of KRW 23,05,00 for the transfer income tax of KRW 505,50,00.

(4) The Defendant notified from the Central Regional Tax Office of the taxation data that Plaintiff 0A’s transfer value of the housing site No. 1 of this case was KRW 776,638,00 (the advance payment of KRW 370,00,000 in the housing site No. 1 of this case + KRW 451,820,000 in the sale price + KRW 451,820,000 in the sale price - the sale price was confirmed as KRW 451,820,00 in the sale price) and the acquisition price was confirmed as KRW 451,820,00 in the sale price, calculated capital gains and tax base based on the above transfer price. On January 1, 2009, the Defendant notified the Plaintiff of the correction and notification of KRW 198,54,850 in the transfer income tax for the year 207

(5) On December 26, 2008, the Plaintiff filed an appeal with the Tax Tribunal on December 26, 2008 and received a decision of dismissal from the Tax Tribunal on April 7, 2009, and filed the instant lawsuit on June 22, 2009.

B. Plaintiff KimCC-related

(1) The Plaintiff KimCC was the owner of ○○○-si ○○○-dong 586-1 Ground Housing (hereinafter referred to as “the second Housing”).

(2) On February 25, 2004, the two houses of this case were included in the housing site development project district of ○○○○○ District and were expropriated by the Korea Land Corporation, which is the project operator, around February 2004, the Plaintiff KimCC received compensation of KRW 267,138,43 for the second houses of this case. On January 11, 2007, it was confirmed and decided as the subject of relocation measures, and then was sold in lots (hereinafter referred to as “the right to sell the second housing site of this case”) on March 8, 2007.

(3) On June 21, 2007, the Plaintiff KimCC transferred the instant housing site sales right to KRW 383,000,000 to DD on June 21, 2007, and reported and paid KRW 34,875,00 capital gains tax as KRW 39,000,000 when filing a preliminary return of capital gains tax.

(4)Pult notified the Plaintiff KimCC of the transfer value of the housing site No. 2 of this case 383,00,000 won (price 345,000,000 + 38,000,000 won including capital gains tax and resident tax) and the taxation data confirming the acquisition value of KRW 0,00,000, and calculated capital gains and tax base on the basis of the above transfer value, and on April 2009, notified the Plaintiff KimCC of the correction and notification of KRW 227,209,061 for the transfer income tax for the year 2007 (hereinafter referred to as the “instant second disposition”).

[Ground of recognition] Facts without any dispute, Gap evidence Nos. 1, Eul evidence Nos. 1, 3 through 5 (including each number), the purport of the whole pleadings

2. Whether a disposition is lawful

A. The parties' assertion

(i)The plaintiff's assertion

① Since the Plaintiff’s right to sell each of the instant housing sites was granted to the Plaintiffs as the price for the waiver thereof based on the ownership of each of the instant housing, the same acquisition value should be deducted from the transfer value of each of the instant housing sites in the necessary expenses. Ultimately, transfer margin is zero won. Accordingly, the first and second dispositions of the instant case premised on the issuance of transfer margin to the Plaintiffs should be null and void or revoked.

(2) Article 94 (1) 2 (a) of the Income Tax Act provides that capital gains tax shall be imposed on income accruing from the transfer of "the right to acquire real estate". The above provision is unconstitutional for the following reasons. Therefore, each of the dispositions of this case based on the premise that the above provision is unconstitutional is unlawful.

Article 11 of the Constitution of the Republic of Korea

If the migrant receives compensation in cash pursuant to Article 23(3) of the Constitution and the Act on Acquisition of and Compensation for Land, etc. for Profit-Making Business, etc., even though no gift tax or transfer income tax is imposed, if the migrant receives compensation as the substitute payment in this case, the imposition of transfer income tax at the time of transfer of the right

(B) Violation of Article 23 of the Constitution of the Republic of Korea, violation of Article 37 (2) of the Constitution

The plaintiffs transferred the right to sell each of the housing sites of this case, which were received as measures for living of migrants, inevitably because they failed to pay the sale price, and the transfer income tax pursuant to the heavy tax rate pursuant to Article 104 of the Income Tax Act was impossible to move to another place. Thus, it is a violation of the property right guaranteed by the Constitution and the principle of proportionality to impose transfer income tax on the subject of heavy tax rate by equally treating the right to resell the housing site that they were forced to purchase and the resale of the apartment house that they received according to their own needs.

Article 38 of the Constitution of the Republic of Korea

Article 94 (1) 2 of the Income Tax Act provides that the resale of apartment sale rights and the resale of the housing site that the principal received for his own needs shall not be distinguished from the resale of the housing site that he received, but shall not be subject to the principle of no taxation guaranteed by the Constitution.

(2) On this issue, the Defendant asserted that the instant disposition is lawful, since the Defendant received the ownership of the instant housing site from the Korea Land Corporation, a project operator, in addition to receiving cash from the Korea Land Corporation, as well as receiving the ownership of the instant housing site as a living compensation.

(b) Statutes;

It is as shown in the attached Table related statutes.

C. Determination

(1) As to the first argument

Where a housing site creation project operator sells a house, etc. and concludes an individual sales contract on the basis of the right of sale of a resettled housing site and imposes capital gains tax on income accrued from the transfer of the right of sale of the resettled housing site itself before the payment of the purchase price, the person who first obtains the right to sell the resettled housing site at the time of confirmation and determination of the person subject to relocation measures, and such right is granted as part of livelihood compensation apart from the transfer price of the house provided for the relevant public project, and thus the acquisition price for such right is not deemed to have been paid. Moreover, even if the transferee of the right of sale of the resettled housing site concludes an individual sales contract on the specific housing site with the person subject to the housing site creation project and pays the purchase price, such payment does not constitute the acquisition price of the right of sale of the resettled housing site (Supreme Court Decision 95Nu17007 delivered on September

Therefore, this part of the plaintiffs' assertion is without merit, based on the premise that the transfer value and acquisition value of the right to sell each of the housing sites of this case are the same as the price for each of the housing units of this case.

(ii)With respect to the right of equality:

However, the transfer income tax on the transfer margin of the expropriated real estate cannot be deemed as the transfer margin of the expropriated real estate, and the transfer margin under the Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor can be deemed as the transfer margin of the expropriated real estate. However, since the transfer margin granted as a part of living compensation cannot be deemed as the transfer margin of the expropriated real estate, it is reasonable to impose the transfer income tax on the purchase and demand of the housing site itself unless the transfer income tax is imposed on the purchase and demand of the housing site itself, but if the purchase and demand of the housing site itself makes profits from the disposal, it cannot

(3)With respect to the guarantee of property rights and the principle of proportionality:

However, as seen earlier, it does not go against the guarantee of property rights under the Constitution to impose capital gains tax on transfer income accruing from the transfer of the right to sell housing units of this case, as the plaintiffs were granted as part of living compensation in accordance with migration separately from the transfer price of housing units of this case, and it does not go against the guarantee of property rights. In addition, even if there was a result of the transfer of the right to sell housing units of this case without holding the right to sell housing units granted as part of living compensation as well as the transfer price for the migrants and paying the transfer income tax imposed by the transfer of the right to sell housing units of this case, the above circumstance alone does not allow the Plaintiffs to be excluded from the person subject to imposition of capital gains tax, and the foregoing provision does not violate

(iv)as to the principle of tax law:

The term "right to acquire real estate" under Article 94 (1) 2 (a) of the Income Tax Act is a legal status to acquire specific real estate, and includes apartment winning rights, which are the rights to acquire buildings and land, when the construction of the building is completed, or land redemption bonds created by the Korea Land Development Corporation, housing redemption bonds issued by the Korea National Housing Corporation, and down payment or other part of the price paid for the purchase and sale of real estate, which are the legal status of the purchaser with respect to the relevant real estate. In conclusion, the above provisions are clear. In addition, there is no need or ground to separate the rights to real estate acquired without the consent of the purchaser and the rights to real estate acquired by the person. Therefore, it is not contrary to the principle of no taxation without law guaranteed by the Constitution.

3.In conclusion

Therefore, each of the plaintiffs' claims is dismissed as it is without merit, and it is so decided as per Disposition.