다세대 주택을 다가구 주택으로 보아 일시적 2주택 규정 적용 가능 여부[국승]
Early High Court Decision 2008J 0237 (O1, 2008)
Whether the provisions of temporary two houses can be applied by deeming multi-household houses as multi-household houses.
It is not easy to distinguish between multi-household housing and multi-household housing because it conforms to the principle of tax equity to strictly interpret the requirements for reduction or exemption as a clear preferential provision. It is difficult to interpret the expansion and trend only for reasons such as the fact that it was not easy to distinguish between multi-household housing and multi-household housing, and that the purpose of purchase was old life guarantee.
The contents of the decision shall be the same as attached.
Article 89 (Non-Taxable Transfer Income Tax of the Gu)
Article 154 of the Enforcement Decree of the former Income Tax Act (Scope of One House for One Household)
1. The plaintiff's claim is dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
The Defendant’s imposition of capital gains tax of KRW 384,831,470 and resident tax of KRW 3,848,310 against the Plaintiff as of July 1, 2007 shall be revoked.
1. Details of the disposition;
A. On October 24, 2006, the Plaintiff sold Jindo-dong ○○○-2 ○○○○ apartment site 302 (hereinafter “the apartment of this case”) to Jindo-dong ○○, Jindo-si, and set the remainder payment date on January 4, 2007. The Plaintiff purchased a multi-household house on the fourth floor located ○○-2, ○○-dong ○○-dong ○○-2 (hereinafter “the apartment of this case”) from the same day, and entered into a contract on December 20, 2006 on the remainder payment date.
B. After that, the Plaintiff requested for the postponement of the remaining payment date to pay the purchase price of the instant apartment sales price. Although it is appropriate to postpone the remaining payment date on January 4, 2007, the Plaintiff demanded that the transfer registration of ownership transfer be made until the end of December 2006. The Plaintiff made the registration of ownership transfer on December 22, 2006 without paying the remainder.
C. On July 1, 2007, the Defendant rendered the instant disposition imposing capital gains tax of KRW 384,831,470, resident tax of KRW 3,848,310, and KRW 310 on the ground that the Plaintiff is a person who owns three or more houses for one household as of January 4, 2007, on the ground that he is a person who owns three or more houses for one household.
[Ground of recognition] Unsatisfy, Gap evidence No. 1 to 3 (including paper numbers)
2. The legality of disposition.
A. The plaintiff's assertion
In light of the spirit that Article 155(1) of the Enforcement Decree of the Income Tax Act provides for the principle of non-taxation for the temporary two housing owners to acquire substitution, the Plaintiff, who is not a real estate expert, was not easy to distinguish between the apartment house and the multi-household house. In order to guarantee the stability of the residential life and the freedom of residence and relocation of the people, the Plaintiff asserts that the instant disposition is unlawful by deviating from or abusing the limits of discretion by excessively harshing the Plaintiff, and thus, it is unlawful.
B. Relevant statutes
Article 89 (Non-Taxable Transfer Income Tax of the Gu)
Article 154 of the Enforcement Decree of the former Income Tax Act (Scope of One House for One Household)
Article 155 of the Enforcement Decree of the former Income Tax Act (Special Cases concerning One House for One Household)
Article 162 (Time of Transfer or Acquisition)
C. Determination
In light of the principle of no taxation without the law, the interpretation of tax laws and regulations shall be interpreted in accordance with the law, unless there are special circumstances. It shall not be permitted to expand or analogically interpret the tax laws and regulations without any reasonable reason. In particular, it shall be consistent with the principle of fair taxation with the principle of fair taxation to strictly interpret the provisions that can be seen as clearly preferential provisions among the requirements for reduction and exemption (see, e.g., Supreme Court Decisions 2001Du731, Apr. 12, 2002; 97Nu2090, Mar. 27, 1998). The grounds asserted by the Plaintiff alone are that the disposition in this case does not deviate from the limit of discretion or are unlawful by abusing it.
3. Conclusion
Thus, the plaintiff's disposition of this case is dismissed as it is without merit.