Plaintiff (Law Firm Sejong, Attorney Lee Young-soo, Counsel for the plaintiff-appellant)

The Director of Gangnam District Office

May 12, 2009

Seoul Administrative Court Decision 2006Gudan9439 decided June 27, 2008

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance shall be revoked. The defendant shall revoke the disposition rejecting the reduction or correction of capital gains tax against the plaintiff on July 5, 2006.

1. Details of the disposition;

The reason why this court's explanation is the same as that of the judgment of the court of first instance. Thus, it is citing it by Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

2. The plaintiff's assertion

A. Main assertion

The Plaintiff merely purchased the instant housing No. 1 from Nonparty 2, who was the owner of the instant housing, but obtained title trust. As such, the Plaintiff did not have any obligation to pay capital gains tax on the ground that it did not own or transfer the instant housing

B. Preliminary assertion

(1) Article 15(1) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 21301, Feb. 4, 2009; hereinafter the same) and Article 72(1)2 of the Enforcement Rule of the same Act (amended by Ordinance of the Ministry of Finance and Economy No. 476, Dec. 31, 2005; hereinafter the same shall apply) excludes cases where a household possessing one house temporarily owns two houses, it shall be deemed one house for one household if the former house is transferred within one year from the date of acquiring another house. Even if the former house was not disposed of within one year, it shall be treated as the same as the transferred house if the auction is applied to the court within the same period, and in fact, it shall not be treated as a provisional disposition having the same effect as the case of application for auction, and in the case of the plaintiff, it shall not be unconstitutional to have the same effect as the case of a provisional disposition under Article 15(1) of the former Enforcement Rule of the Income Tax Act, which does not have the same effect as the transfer income tax of the second house.

(2) Article 155(5) of the former Enforcement Decree of the Income Tax Act provides that special cases concerning one house for one household shall apply to a house transferred within two years in cases where a person holding two houses for one household temporarily becomes two houses due to marriage with a person holding two houses for one household. However, the Plaintiff, like the Plaintiff, has no provision concerning the transfer within two years after the person holding two houses for one household married with a person holding two houses for two years, and maintains three houses for one household. The above provision has no reasonable ground to discriminate against a person holding three houses due to marriage. Since the person who is scheduled to marry as a person holding two houses is subject to restriction on an individual's free decision-making right regarding marriage by affecting the time of marriage due to the above transfer during the above transfer age, the above provision is unconstitutional against Article 10 of the Constitution, the right to pursue happiness, Article 11 of the Constitution, the right to equality, and Article 36(1) of the Constitution of the Republic of Korea.

(3) Accordingly, the instant disposition based on an unconstitutional order and rule must be revoked as unlawful.

B. Relevant statutes

It is as shown in the attached Form.

C. Judgment on the main argument

If a title truster transfers real estate to a third party and income from such transfer was attributed to a title truster, under the principle of substantial taxation under Article 14(1) of the Framework Act on National Taxes, if the title truster, who is the subject of the transfer, does not become a taxpayer of the transfer income tax (see Supreme Court Decision 96Nu6387, Oct. 10, 197, etc.).

In addition, according to the evidence Nos. 16-1 through 5 and evidence Nos. 24, even after the non-party 2 transferred the house No. 1 to the plaintiff, the non-party 2's family members continued to reside in the house No. 1, and the Small and Medium Business Corporation was decided by the Seoul Central District Court on February 25, 2004 on the ground that the transfer registration of ownership in the name of the plaintiff was fraudulent act.

However, in any kind of relationship between the plaintiff and the non-party 2, it is unclear whether the house No. 1 in this case was title trust; acquisition tax, registration tax, and other registration expenses, etc. incurred by the plaintiff in the course of receiving the registration of the above real estate in the course of receiving the transfer of the registration of the above real estate are insufficient; there is no evidence to deem that the plaintiff paid property tax, etc. due to the possession of the real estate even after the plaintiff became the title holder of the house No. 1 in this case; there is insufficient objective financial data to deem that the plaintiff used the surplus from the successful bid of the house No. 1 in this case by directly receiving it by the non-party 2, not the plaintiff; and there is insufficient evidence to support the fact that the plaintiff first filed the claim for title trust for the first time in the third day of pleading of the party deliberation; and there is no other evidence to support the fact of title trust.

Therefore, the plaintiff's primary argument is without merit.

D. Determination on the conjunctive assertion

(1) As to the assertion of the above (1)

Article 155(1) of the former Enforcement Decree of the Income Tax Act provides that even if a person becomes two houses temporarily, if the previous house is transferred within one year, it shall be deemed as one house for one household, and if there is any reason as prescribed by the Ordinance of the Ministry of Finance and Economy, it shall be deemed that the transfer has not been made even if there is no actual transfer within the said period. Article 72(1) of the former Enforcement Rule of the Income Tax Act provides that the reason as prescribed by the Ordinance of the Ministry

Article 155(1) of the former Enforcement Decree of the Income Tax Act and Article 72(1) of the former Enforcement Rule of the Income Tax Act provide that where the Korea Asset Management Corporation requests a sale, and where a public auction is applied to the court, or where a public auction is being conducted, a sale shall be deemed to have been conducted, in consideration of the fact that the procedure was commenced, and that the core of the sale procedure is the progress of the sale procedure. The reason why a disposition of prohibition of disposal was taken by a third party is not an estimate of sale, and the reason why a disposition of prohibition of disposal was conducted by a third party is a reason entirely different from the case where a request for sale and a public auction is filed to the court or a public auction is in progress. Thus, it is difficult to deem that Article 72(1)2 of the former Enforcement Rule of the Income Tax Act provides that only a request for sale has the same effect as the transfer, and that Article 72(1)2 of the former Enforcement Rule of the Income Tax Act provides

In addition, the plaintiff did not have the opportunity to sell the house No. 1 of this case before the provisional disposition, and it is not possible to sell the house No. 1 of this case because it is the real estate subject to the provisional disposition, and its owner could remove and dispose of the effect of the provisional disposition after consultation with the parties to the lawsuit or dispute. Thus, it is excessive that the plaintiff did not dispose of the house that could not be disposed of on the ground that it applied the provision of excessive capital gains tax to the house No. 1 of this case including the real estate subject to the provisional disposition, and it is also difficult to view that it goes against

Therefore, the plaintiff's (1) argument is without merit.

(2) As to the assertion of the above (2)

Article 155 (5) of the former Enforcement Decree of the Income Tax Act provides that "where a person holding one house comes to own two houses by marriage with a person holding one house, a house which is first transferred within two years from the married date (limited to the house in question for which the retention period is at least three years) shall be deemed to be one house for one household, and the provisions of Article 154 (1) shall apply to the case where a person holding two houses is married with a person holding one house." However, there is no similar provision for the case where a person holding two houses is married with a person holding one house (However, there was three houses for one household by a temporary two house under Article 155 (1) of the former Enforcement Decree of the Income Tax Act, but if a person holding two houses transfers the previous house within one year from the date on which he becomes two houses, it is reasonable to regard the transfer of one house for one household, but in the case of the plaintiff, it does not constitute an exception for the transfer of the house in question after the lapse of one year from the time of two houses.

However, the reason why the capital gains tax provisions are applicable to the holder of multi-households of one household is to ensure the stability of housing life of many people by preventing the ownership of limited goods, which are housing, by means of securing the stability of housing life of many people and recovering income generated from real estate speculation from tax, and thereby preventing the sound development of the national economy. Accordingly, even if some multi-households bear capital gains tax more, it is difficult to view it as a discrimination without reasonable grounds. In light of the purport of these provisions, it is difficult to view that the special provisions only for one person who owns one house which is essential for his/her own living, and in certain cases, it is possible to avoid capital gains tax out of capital gains tax, and it is difficult to view that the Plaintiff who has more than one house did not have any special provisions that are able to avoid capital gains tax, and thus, it is difficult to view it as a discrimination without reasonable grounds.

In addition, in light of the fact that marriage is basically a combination of men and women on the basis of custom and trust, it is difficult to view that the reason that two owners of two houses are treated as owners of three houses due to marriage, and the reason that capital gains tax is more imposed is affected by the decision of the intention of marriage. In addition, Article 155(5) of the former Enforcement Decree of the Income Tax Act explicitly provides for special cases that the transfer of one house by one household is to be treated within two years in case of temporary two houses due to marriage, and as seen above, Article 155(1) of the Enforcement Decree of the Income Tax Act explicitly provides for special cases that the temporary two houses under Article 155(1) of the same Decree can be treated as two houses even if they are married, if they dispose of the previous house within one year from the date on which they become two houses, the case where the person who became a multi-household due to marriage becomes unfairly subject to capital gains tax, and thus, it cannot be viewed that the plaintiff violates Article 15(5) of the former Enforcement Decree of the Income Tax Act and Article 16(2) of the Constitution.

(3) Sub-decisions

Therefore, both the above Enforcement Decree and the Enforcement Rule, which the plaintiff asserts as unconstitutional, are constitutional. Thus, the plaintiff's preliminary assertion that the above Enforcement Rule and the Enforcement Rule are unlawful on the premise that they are unconstitutional, is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case shall be dismissed as it is without merit, and the judgment of the court of first instance is just, and the plaintiff's appeal is without merit, and it is so dismissed as per Disposition.

[Attachment Omission of Related Acts]

Judges Yoon Jae-ho (Presiding Judge) (Presiding Judge)