2. The Defendant’s imposition of capital gains tax of KRW 9,067,570 and special rural development tax of KRW 483,604 against the Plaintiff on December 29, 2009 shall be revoked.

3. Of the litigation costs, 10% is assessed against the Plaintiff, and the remainder is assessed against the Defendant, respectively.

A. On April 20, 1979, the Plaintiff: ○○-gu ○○○○-dong 422-3 large 221 square meters and its ground housing 39.

32m2 acquired a lot of land.

B. On May 8, 1986, ○○ City determined and publicly notified 101 square meters of the above land (hereinafter “the instant portion”) as urban planning facilities (the urban planning facilities), and determined and publicly notified 41 square meters of the remainder 120 square meters (hereinafter “the instant land”) as urban planning facilities on January 4, 1988.

C. around July 1993, ○○ City: (a) divided the instant portion into 422-1 of the same Act as the instant portion, and accepted the said housing along with the relevant ground, and removed the said housing on or around June 1994; (b) one house provision for one household was applied to the compensation for expropriation, and thus, (c) capital gains tax was exempted.

D. On April 12, 2006, the Plaintiff exercised the right to purchase the instant land at ○○○ City, and around April 2009, 000 ○○ City accepted 41 square meters publicly notified as an urban planning facility (in the instant land), among the instant land, and purchased the remaining 79 square meters by consultation.

E. On June 19, 2009, the Plaintiff voluntarily reported and paid capital gains tax of 5,440,545 won, resident tax of 54,054 won, and special rural development tax of 1,209,010 won.

F. On December 29, 2009, the Defendant corrected and notified the Plaintiff of the transfer income tax of KRW 9,067,575 (the Plaintiff’s reported amount of KRW 5,440,545 + the increased amount of KRW 3,627,030) and special rural development tax of KRW 483,604 (the Plaintiff’s reported amount of KRW 1,209,010 - the reduced amount of KRW 725,406) on the ground that the instant land was not land within the development restriction zone (hereinafter “instant disposition”). The resident tax at the time of the instant disposition was calculated as KRW 906,757 (the Plaintiff’s reported amount of KRW 54,054 + the amount to be increased to KRW 362,703), additional dues, and the amount to be increased to be included in the additional dues to be KRW 373,580 (36,703,80).

G. On March 25, 2010, the Plaintiff, who was dissatisfied with the instant disposition, requested an inquiry to the Tax Tribunal on March 25, 2010, but was dismissed on September 10, 2010.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 4, 6, 7, 8, and Eul evidence No. 1 (including each number), the purport of the whole pleadings

2. Whether the part seeking revocation of the disposition imposing resident tax among the lawsuit of this case is legitimate

The defendant of an appeal seeking revocation of the disposition imposing resident tax is the head of the relevant Si/Gun having jurisdiction over the place of payment of income tax (see Supreme Court Decision 2004Du11459, Feb. 25, 2005). As such, the part seeking revocation of the disposition imposing resident tax among the lawsuit of this case against a person who is not qualified as the defendant is unlawful (see, e.g., current statutes and practical regulations).

3. Part demanding revocation of the portion exceeding 483,604 won among the disposition imposing special rural development tax of the instant lawsuit

The Defendant, at the time of the instant disposition, corrected the amount of special rural development tax from 1,209,010 to 725,406 won by reducing the amount reported by the Plaintiff to 483,604 won. As such, there is no longer any portion exceeding 483,604 won corrected, and therefore, the part seeking revocation of this part among the instant lawsuit is unlawful.

4. Whether the remainder is lawful

A. The plaintiff's assertion

The land in this case was the land annexed to the house, which was located on that ground, in combination with the part in this case. The above house constituted one house for one household at the time of expropriation, and it is impossible to sell the land in this case to another person due to legal constraints, etc. after the expropriation of the part in this case. Thus, the transfer of the land in this case is the land annexed to one house for one household, and is exempt from taxation pursuant to Article 89 (1) 3 of the Income Tax Act.

B. Key statutes

It is as shown in the attached Form.

C. Determination

In light of the principle of no taxation without law, or the requirements for tax exemption or tax exemption, the interpretation of tax laws is to be interpreted in accordance with the text of the law, barring special circumstances, and it is not allowed to expand or analogically interpret without reasonable grounds, and in particular, it accords with the principle of fair taxation to strictly interpret that the provision is clearly preferential in terms of the requirements for tax exemption or exemption (see, e.g., Supreme Court Decision 2003Du7392, May 28, 2004).

According to Article 89(1)3 of the Income Tax Act and Article 154(1) of the Enforcement Decree of the Income Tax Act, where a household comprised by a resident and his/her spouse together with a family member who shares the same livelihood in the same address or same place of residence has one house in Korea as of the date of transfer, and where the period of possession is at least three years but is at least one house for one household, income tax shall not be imposed on the income accruing from the transfer of the relevant house and its appurtenant land. In the original case, for income accruing from the transfer of one house for one household to become a non-taxable income, the former house must be settled on the ground at the time of the transfer. However, if the previous house was removed as a result of the implementation of an urban planning project, it shall be deemed that it was at least one house for one household under the Income Tax Act as at the time of the removal of the previous house, and it shall be interpreted that the income tax should not be imposed on the income arising from the transfer of the land, which is not the land attached to "one house" under Article 18(2).

In addition, as alleged by the Defendant, there is a limit on the time limit in the determination of non-taxation for the appurtenant land, and furthermore, there is no explicit statutory provision in order to view that the requirements for one house for one household should be met even at the time of

On or around June 1994, at the time when the portion in this case was expropriated together with the land, the Plaintiff met the requirements for non-taxation of capital gains tax pursuant to the provisions of one house for one household at the time of expropriation, and thereafter, the Plaintiff’s exercise of the Plaintiff’s right to purchase the land in this case on or around April 2009, purchased 41 square meters of the land in this case and the remainder of 79 square meters of the land in this case as above. Thus, the disposition in this case is unlawful on the premise that the transfer of the land in this case should be exempt from capital gains tax, provided that the Plaintiff purchased 41 square meters of the land in this case on or around April 2009.

In addition, the determination of the legality of a disposition in a lawsuit seeking revocation of a tax disposition is based on whether it exceeds a legitimate tax amount, and the parties can submit arguments and materials supporting the objective tax liability amount until the closing of argument. When calculating the legitimate tax amount to be imposed lawfully based on such materials, only the portion exceeding the legitimate tax amount shall be revoked, and the entire tax amount shall not be revoked, but if a legitimate tax amount cannot be calculated due to the lack of legitimate data, the entire tax disposition shall be revoked (see, e.g., Supreme Court Decision 92Nu4840, Jul. 24, 1992). Therefore, the entire tax

5. Conclusion

Therefore, the part seeking revocation of the resident tax imposition disposition among the lawsuit of this case and the part seeking revocation of the part exceeding 483,604 won among the imposition disposition of special rural development tax is dismissed as unlawful, and the remaining part is cited for reasons.