2. The Defendant’s disposition of imposition of each capital gains tax on June 8, 2010, x members belonging to the year 2008, and x members belonging to the year 2009, shall be revoked.

3. 45% of the total costs of litigation shall be borne by the Plaintiffs, and the remainder by the Defendant.

Cheong-gu and purport of appeal

The decision of the first instance court shall be revoked. The defendant's disposition of imposition of respective transfer income tax on the deceased EA (hereinafter "the disposition of imposition of transfer income tax in this case") for the year 2008, x members for the year 2009, x members for the year 2009, and x members for the deceased on August 1, 2010, x members for the year 2005, x members for the year 2006, x members for the year 2007, x members for the year 2007, x members for the year 2008, and x members for the year 208 (hereinafter "the disposition of imposition of comprehensive real estate tax in this case").

In the first instance trial, the deceased Lee Dong-A requested the revocation of each imposition of transfer income tax on the deceased in 2008 on June 8, 2010 and each imposition of transfer income tax on the deceased in 2009 (hereinafter referred to as the "disposition of transfer income tax of this case"), and on August 1, 2010, the revocation of each imposition of transfer income tax of x members in 2005, x members in 2006, x members in 2007, x members in 207, x members in 208, and x members in 208, respectively.

The first instance court dismissed all the claims of the deceased, and the deceased filed an appeal against the judgment of the first instance, but the trial prior to the remand dismissed the appeal of the deceased.

Accordingly, the deceased filed an appeal. The Supreme Court partially accepted the appeal and reversed the part on the disposition of imposition of transfer income tax of this case, and dismissed the appeal on the disposition of imposition of transfer income tax of this case. Therefore, the part on the global income tax of this case became final and conclusive by the Supreme Court, and thus, the scope to be tried by the court is limited

2. Circumstances of the disposition and related Acts and subordinate statutes;

The court's explanation on this part is the same as the corresponding part of the judgment of the court of first instance in addition to the deletion of the part of the "Comprehensive Real Estate Tax Act" from among the 1. disposition of the court of first instance as 'the deceased', 'the background of the disposition of the court of first instance' as 'the deceased' as 'the deceased', 'b. paragraph (f)' as the following. Therefore, it is cited in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act

[f. As the Deceased died on December 11, 2014, the Plaintiffs inherited the deceased’s property and taken over the instant lawsuit]

3. Summary of the plaintiffs' assertion

(a) Illegal calculation of capital gains tax amount;

신축주택 취득자에 대한 양도소득세의 과세특례를 둔 규정의 입법취지, 신축주택취득 후 5년 이내 양도 시 양도™"그세 전액의 비과세 취지, 신축주택의 취득일로부터 5년간 발생한 양도소득금액 계산시 구조조정대상부동산 �그자에 대한 양도소득세의 과세특례규정준용과 그 내용ㅇ 등에 비추어, 거주자가 자기가 건설한 신축주택을 취득한 후 5년이 경과한 시점에서 이를 양도하는 경우에는 종전주택 �그일부터 신축주택취득일 전날까지 발생한 양도소득 또한 양도소득세 과세대상소득금액에서 차감하는 것이 타당하다. 그럼에도 이 사건 양도소득세 부과처분은 이와 다른 전제에서 이루어진 것이므로 위법하다.

(b) Violation of the principle of retroactive taxation prohibition (or the principle of trust protection);

과세관청은 2005년에 2명, 2007년에 1명에게 신축주책 취득일 이전의 양도™"그에 대해서도 이를 감면해 줌으로써 신축주택 취득일 이전의 양도소득을 감면하는 관행이 성립하여 비과세 관행이 납세자에게 받아들여진 것이므로, 이제와서 새로운 해석에 따라 과세하는 거으 국세기본법 제18조 제3항이 정하는 소급과세금지원칙 또는 신뢰보호원칙을 위반한 것이다.

C. Violation of the doctrine on prohibition of re-disposition after accepting a request for appeal and ex officio revocation of taxation

After the tax authority accepted an objection and revoked ex officio a tax disposition, it is unlawful to reverse the previous disposition without any special reason. Since the deceased transferred the 6-built house of this case and filed a claim for correction on the ground that Article 99-3(1) of the former Restriction of Special Taxation Act should be applied, and the above provision should be applied. Accordingly, the defendant accepted the deceased’s claim for correction and subsequently refunded the relevant difference. The above procedure for filing a request for correction is essentially different from the procedure for filing an objection, and thus, the above legal principle should also be applied to the procedure for filing a request for correction in the procedure for filing an objection.

(d) Any justifiable ground on which the penalty tax is not imposed;

Even if capital gains prior to the date of acquisition of newly-built house are not subject to reduction or exemption, the difference between the tax authority’s attitude and the court’s opinion related to the change and interpretation may be seen as a conflict of interpretation beyond the scope of simple legal sites or misunderstandings, and thus, it constitutes a case where there is a justifiable reason that does not lead to the failure of the Plaintiff to perform his/her duties, i.e., neglecting to do so., the penalty portion

4. Determination

A. Details of the relevant statutes

Article 9-3 (1) of the former Restriction of Special Taxation Act (amended by Act No. 6762 of Dec. 11, 2002; hereinafter the same shall apply) and the main sentence of Article 99-3 (1) (hereinafter referred to as the "special case provision") provide that "where a resident acquires a newly-built house falling under any of the following subparagraphs and transfers it within 5 years from the date of its acquisition, the tax amount equivalent to 100/100 of the transfer income tax shall be reduced or exempted (hereinafter referred to as "former"), and where the relevant newly-built house is transferred after 5 years have elapsed from the date of its acquisition, the transfer income amount accrued for 5 years from the date of its acquisition shall be subtracted from the income amount subject to the transfer income tax (hereinafter referred to as "after the latter").

B. Whether the calculation of capital gains tax is lawful

① The Special Provision stipulates the details of special taxation by dividing the newly-built house into the former and latter parts based on whether it was transferred within five years from the date of acquisition, and does not expressly stipulate the starting date of capital gains subject to reduction or exemption. In addition, the Special Provision stipulates that capital gains before the date of acquisition of a newly-built house is subject to reduction or exemption, such as transfer of a newly-built house acquired through reconstruction and redevelopment, but only stipulates that capital gains tax shall be fully reduced or exempted without separately preparing the formula of distributing the amount of tax reduction or exemption different from the latter, unlike the latter part. In light of the language and structure of the Special Provision, the legislative intent of promoting the construction of a newly-built house and real estate market by encouraging the construction and sale and transaction of a newly-built house within five years from the date of acquisition, the Special Provision is understood as the provisions that grant the full reduction or exemption of capital gains tax, but only the “transfer income accrued for five years from the date of acquisition of a newly-built house” only to the “transfer date of a newly-built house from the date of acquisition without the “transfer date of a newly-built house”.

Meanwhile, in the case of "transfer after five years from the date of acquisition of the newly-built house" subject to the latter part of the Special Provision, the latter part of the Special Provision delegates the amount of transfer income accrued for five years from the date of acquisition of the newly-built house (Article 99-3 (4) of the former Restriction of Special Taxation Act). Thus, Articles 99-3 (2) and 40 (1) of the former Enforcement Decree of the Restriction of Special Taxation Act should be followed. However, Articles 99-3 (2) and 40 (1) of the former Enforcement Decree of the Restriction of Special Taxation Act do not separately define the method of calculating transfer income accrued after the date of acquisition of the newly-built house from the date of acquisition of the newly-built house to the date of acquisition of the newly-built house, i.e., transfer income accrued from the date of acquisition of the newly-built house / "transfer income from the date of acquisition of the newly-built house" / "transfer income from the date of acquisition of the newly-built house at the time of acquisition" / "transfer income from the entire method or transfer period."

② The Defendant calculated the transfer income amount accrued from the date of acquisition of each newly-built house of this case from the date of transfer to the date of transfer according to the method of arbitrary choice without any legal basis, and then instead calculated the transfer income amount generated for five years from the date of acquisition of each newly-built house of this case, and additionally imposed the remaining tax amount after calculating the transfer income amount for five years from the date of acquisition of each newly-built house of this case and subtracting the amount of voluntary declaration and payment (the amount of tax upon request for correction). Thus, the instant disposition

C. Sub-decision

Therefore, the disposition of imposition of capital gains tax of this case is unlawful without further review of the plaintiffs' remaining arguments.

5. Conclusion

Therefore, the plaintiffs' claims are justified, and the decision of the court of first instance which has different conclusions is unfair, so the part against the plaintiffs regarding the disposition of imposition of transfer income tax of this case in the judgment of the court of first instance shall be revoked and the disposition of imposition of transfer income tax of this case shall be revoked