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

A. The Plaintiff: (a) acquired and owned each of the instant apartment buildings on the ground of the instant housing site (hereinafter “instant housing site”) and transferred the instant apartment on August 10, 2016 (hereinafter “instant transfer”); and (b) “the income accrued to the Plaintiff is the instant transfer income”. Meanwhile, the instant housing site was designated on March 4, 2013 in accordance with Article 2(2) of the Cultural Heritage Protection Act.

B. On September 26, 2016, the Plaintiff reported on September 26, 2016 that the instant capital gains constituted non-taxable income from the transfer of “one house for one household”.

C. On June 22, 2017, the Defendant: (a) deemed that the instant capital gains are not exempt from taxation; and (b) determined and notified the Plaintiff of KRW 79,643,770 (including additional taxes) of the capital gains tax reverted to year 2016 (hereinafter “instant disposition”).

D. On September 21, 2017, the Plaintiff dissatisfied with the instant disposition, filed an appeal with the Tax Tribunal on September 21, 2017, but the Tax Tribunal dismissed the appeal on December 5, 2017.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 4, Eul evidence No. 1, the purport of the whole pleadings

2. Related statutes;

Article 89 (1) 3 (a) of the former Income Tax Act (amended by Act No. 14389, Dec. 20, 2016; hereinafter the same shall apply) provides that "one house for one household prescribed by Presidential Decree" shall be non-taxable, and Article 154 (1) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 27829, Feb. 3, 2017; hereinafter the same shall apply) provides that "one house for one household which is exempt from capital gains tax" shall be defined as "one house for one household which is exempt from capital gains tax". Meanwhile, Article 155 (6) of the former Enforcement Decree of the Income Tax Act provides that "where one household owns one house falling under any of the following subparagraphs and another house (hereafter referred to as "ordinary house" in this paragraph) in Korea, it shall be deemed that it owns the ordinary house under Article 155 (1) 3 (a) of the same Act and Article 154 (1) of the same Enforcement Decree shall apply to the same Act:

3. Whether the instant disposition is lawful

A. The plaintiff's assertion

Since the instant housing site was designated as a designated cultural property pursuant to Article 2(2) of the Cultural Heritage Protection Act at the time of the instant transfer, the instant housing also falls under the designated cultural property pursuant to Article 2(2)1 of the former Enforcement Decree of the Income Tax Act and the registered cultural property pursuant to Article 53(1) of the same Act. Therefore, the instant transfer income should be deemed as falling under the “designated cultural property pursuant to Article 2(2) of the Cultural Heritage Protection Act” under Article 155(6)1 of the former Enforcement Decree of the Income Tax Act. Therefore, the instant transfer income is unlawful as the income accrued from the transfer of the instant apartment, which is a general house, by the Plaintiff, owned the instant apartment that falls under the designated cultural property pursuant to Article 155(6)1 of the former Enforcement Decree of the Income Tax Act

B. Determination

1) In light of the principle of no taxation without law, or the requirement for tax exemption or tax exemption, the interpretation of tax laws shall be interpreted as the text of the law, barring any special circumstance, and it shall not be extensively interpreted or analogically interpreted without any justifiable reason. In particular, it accords with the principle of fair taxation with the strict interpretation of the provisions that can be seen as clearly preferential provisions among the requirements for tax exemption or exemption (see, e.g., Supreme Court Decisions 2003Du7392, May 28, 2004; 2009Du18325, Apr. 29, 2010).

2) According to the contents and structure of the above relevant laws and regulations, Article 155(6) of the former Enforcement Decree of the Income Tax Act provides that “The provisions of Article 155(6) of the former Enforcement Decree of the Income Tax Act prescribing the subject of non-taxation of capital gains tax shall be deemed to be clearly preferential provisions among the provisions on tax reduction and exemption. In addition, the part other than each subparagraph of Article 155(6) of the former Enforcement Decree of the Income Tax Act provides that “the houses falling under any of the following subparagraphs and other houses (referred to as an additional entry for emphasizing the statutes; hereinafter the same shall apply)” (the bottom of the statutes), and thus, one household may be exempt from taxation provided for in the above provisions only where it owns “ordinary housing” and “designated cultural heritage under Article 2(2) of the Cultural Heritage Protection Act or a house falling under registered cultural heritage under Article 53(1) of the same Act and transfers “ordinary housing”. However, the Plaintiff is also recognized as not subject to non-taxation of capital gains tax pursuant to Article 15(15) of the former Enforcement Decree:

3) The plaintiff's assertion is purporting to expand the "house falling under any of the following subparagraphs" in the part other than each subparagraph of Article 155 (6) of the former Enforcement Decree of the Income Tax Act to the "house falling under any of the following subparagraphs (including the house on the land falling under any of the following subparagraphs)," and there is no ground to expand the above provision under the preferential provision as above, so the plaintiff's assertion is legitimate (the above provision is legitimate in light of the fact that various strict regulations under the public law have become effective in respect of the house falling under the designated cultural property or registered cultural property, and in case of the transfer of the ordinary house while holding such house and ordinary house, it is intended to grant the benefits of non-taxation. There is no difference between the public law regulation on the house falling under the designated cultural property or registered cultural property and the public law regulation on the site other than such house itself. In addition, Article 94 (1) 1 of the former Income Tax Act clearly prescribes the "land" and the "building" as the object of transfer giving capital gains.

3. Conclusion

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

annex.

Related Acts and subordinate statutes

▣ 구 소득세법(2016. 12. 20. 법률 제14389호로 개정되기 전의 것)

Article 89 (Non-Taxable Capital Gains)

(1) No capital gains tax (hereinafter referred to as "capital gains tax") shall be levied on the following income:

3. Income generated from transfer of any of the following houses (excluding expensive houses the value of which exceeds the standard prescribed by Presidential Decree) and land appurtenant thereto, the area of which is within the area calculated by multiplying the area of which a building is built by the multiple rates prescribed by Presidential Decree by the area of each region (hereafter in this Article, referred to as "land annexed

(a) One house for one household prescribed by Presidential Decree;

Article 94 (Scope of Transfer Income)

(1) Capital gains shall be the following incomes, generated in the relevant taxable period:

1. Income generated from transfer of land (referring to any land category subject to registration in the cadastral register under the Act on the Establishment, Management, etc. of Spatial Data) or a building (including any facilities and structures attached to a building);

▣ 구 소득세법 시행령(2017. 2. 3. 대통령령 제27829호로 개정되기 전의 것)

§ 154. Scope of “One house for one household”

(1) "One house for one household prescribed by Presidential Decree" in Article 89 (1) 3 (a) of the Act means that a resident and his/her spouse together with the family members living together with the same address or same place of residence (hereinafter referred to as "one household") holds one house in Korea as of the date of transfer, and the holding period of the relevant house is at least two years (three years, in cases of the resident's house falling under paragraph (8) 2).

§ 155. Special case of “One house for one household”

(6) Where one household having in Korea each one of the houses falling under any one of the following subparagraphs, and of another house (hereafter in this paragraph, referred to as "ordinary house") respectively, transfers the ordinary house, such household shall be considered to own one house in Korea, and Article 154 (1) shall be applicable:

1. Designated cultural heritage under Article 2 (2) of the Cultural Heritage Protection Act and registered cultural heritage under Article 53 (1) of the same Act;

▣ 구 문화재보호법(2017. 3. 21. 법률 제14640호로 개정되기 전의 것)

Article 2 (Definitions)

(2) The term "designated cultural heritage" in this Act means the following cultural heritage:

1. State-designated cultural heritage: Cultural heritage designated by the Administrator of the Cultural Heritage Administration under Articles 23 through 26;

2. City/Do-designated cultural heritage: Cultural heritage designated by the Special Metropolitan City Mayor, a Metropolitan City Mayor, a Special Self-Governing City Mayor, a Do Governor or a Special Self-Governing Province Governor (hereinafter referred to as

3. Cultural heritage resources: Cultural heritage designated by a Mayor/Do Governor pursuant to Article 70 (2) among those not designated pursuant to subparagraph 1 or 2.

(3) The Administrator of the Cultural Heritage Administration shall Article 53 of the Cultural Heritage Administration among cultural heritage not registered under this Act.

the term "cultural heritage registered pursuant to this Act" means cultural heritage registered.

Article 23 (Designation of References and National References)

(1) The Administrator of the Cultural Heritage Administration may designate important cultural heritage as treasures, following deliberation by the Cultural Heritage Committee.

(2) The Administrator of the Cultural Heritage Administration may designate cultural heritage of great value when viewed from the perspective of human culture, which falls under treasuress under paragraph (1), as national treasures, following deliberation by the Cultural Heritage Committee.

Article 24 (Designation of National Intangible Cultural Heritage)

(1) The Administrator of the Cultural Heritage Administration may designate significant intangible cultural heritage as national intangible cultural heritage, following deliberation by the Intangible Cultural Heritage Committee under Article 9 of the Act on the Safeguarding and Promotion of Intangible Cultural Heritage.

Article 25 (Designation of Historic Sites, Scenic Places, and Natural Scenery) (1) The Administrator of the Cultural Heritage Administration may designate important monuments as historic sites, scenic areas, or natural monuments, following deliberation by the Cultural Heritage Committee.

(2) Necessary matters concerning the standards, procedures, etc. for the designation of historic sites, scenic areas and natural monuments shall be prescribed by Presidential Decree.

Article 26 (Designation of Important Folk Resources)

(1) The Administrator of the Cultural Heritage Administration may designate important folklore resources as important folklore resources, following deliberation by the Cultural Heritage Committee.

(2) Necessary matters concerning standards, procedures, etc. for the designation of important folklore resources shall be prescribed by Presidential Decree.

Article 53 (Registration of Cultural Heritage)

(1) The Administrator of the Cultural Heritage Administration may register cultural heritage for which measures for preservation and utilization are specifically required, among those other than designated cultural heritage, following deliberation by the Cultural Heritage Committee.

Article 70 (Designation, etc. of City/Do-designated Cultural Heritage)

(1) A Mayor/Do Governor may designate cultural heritage located in his/her jurisdiction, which has not been designated as State-designated cultural heritage, as City/Do-designated cultural heritage.

(2) A Mayor/Do Governor may designate cultural heritage not designated pursuant to paragraph (1) as cultural heritage resources, if deemed necessary for preserving local culture.