(영문) 서울행정법원 2018. 09. 11. 선고 2017구단75296 판결

The Defendant’s imposition of KRW 100,000,000 (including additional taxes) for the Plaintiff on October 20, 200** 200,000,000,000 (including additional taxes) for the transfer income tax for the year*.

Reasons

1. Details of the disposition;

A. The plaintiff completed the registration of ownership transfer on May 198 *.* 1* 1* * * * * * * * * * * * * * * * * * * * * * * 'the instant housing') from among the buildings listed in paragraph 2 of the Schedule of Shares 1 of the Attached Table 1 of the Attached Table 1 of the Attached Table 1 of the Attached List 198.

A. On May 5, 2014, *. Co., Ltd.*****C transferred the instant housing.

B. On September 11, 1978, the Plaintiff’s father (the father) completed the registration of ownership transfer for the land listed in paragraph (3) of the annexed Table No. 4 of the annexed Table No. 3 of the above ground and the building listed in paragraph (4) of the annexed Table No. 4 of the annexed Table No. 3 of the above ground (hereinafter “the destroyed house”) on August 1, 1978 *. The Plaintiff completed the registration of ownership transfer for the reason of sale * August 2010 *. * after completion of the registration of ownership transfer for the destroyed house of this case on the ground of the same date gift. * on February 201 * around February 3, 201 * the same as the land listed in paragraph (3) **** * * * * * * * * 4

C. On September 201, 201, the building ledger as to the building listed in the separate sheet No. 4 was cancelled *.*. On November 201, 201, the registration of destruction of the building was made *. The plaintiff constructed a building listed in the separate sheet No. 5 (hereinafter referred to as the "alternative house in this case") on the above****-******, on the ground outside of land, on September 1, 201, and completed the registration of preservation of ownership * upon obtaining the approval for use * on November 1, 2011 *.

D. On July 2014, the Plaintiff filed a preliminary return on capital gains tax on the instant housing with the Defendant on July 1, 201, and reported that the date of acquisition of the instant substitute housing falls under non-taxation under Article 89(1)3(b) of the former Income Tax Act (amended by Act No. 14389, Dec. 20, 201; hereinafter the same shall apply) and Article 154(1) and (1) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 26763, Dec. 28, 2015; hereinafter the same shall apply) and Article 155(1)(hereinafter referred to as “special cases of non-taxation on two houses for one household temporarily”).

E. Regarding this, the Defendant conducted an investigation of capital gains tax on the Plaintiff from **.* to *. *. *. *. *. * the date of acquisition of the instant substitute house, which is the date of approval for use, *. 8. *. 2010, which is the date of receipt of the instant substitute house, *. *. 5. * * 2014) the transfer of the instant substitute house (including May 1, 2010) was made three years after the Plaintiff owned the instant substitute house (including August 2, 2010). As such, the instant substitute house was temporarily transferred to * 200,000,000 capital gains tax, special rural development tax, and penalty tax (including penalty tax) for the Plaintiff.

F. The Plaintiff dissatisfied with the instant disposition and filed an objection with the commissioner of the regional tax office*. *. *. * on March 2016, 2016, but was dismissed on April 1, 2016*. * again filed an appeal with the Tax Tribunal * on July 1, 2016, but the Tax Tribunal dismissed the Plaintiff’s appeal * on July 2017.

[Ground of recognition] Facts without dispute, Gap evidence 2 through 5, Eul evidence 1 to 3 (including each number, if any) and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff asserts that the income accrued from the transfer of the instant housing for the following reasons is non-taxation subject to the special provisions on non-taxation of two houses for one household temporarily.

1) On August 201, 2010, the instant substitute house was destroyed by the Plaintiff’s gifted 42 years after the date of new construction *, the Plaintiff received the gift on the premise of removal and new construction, and immediately removed the instant substitute house and newly built the instant substitute house without using or making profits from it immediately after the Plaintiff actually received the donation. In view of the purport of the special provisions on non-taxation of two houses for one household temporarily seeking stability in the residential life by suppressing speculative demand for the instant substitute house, it is reasonable to regard the acquisition date of the instant substitute house as the date of approval for the use of the instant substitute house rather than the date of acquisition of the instant substitute house.

2) Where the tax authority deems that one household possessing one house meeting the requirements for non-taxation for one household on April 12, 2004 is obviously old house and its appurtenant land and that it was intended to use only the land from the beginning to the beginning, such as purchase of old house and its appurtenant land and commencement of removal within a short time without using it for residential purpose, and where it constitutes two houses for one household by constructing a new house on the purchased land, the provisions of Article 155 (1) of the Enforcement Decree of the Income Tax Act may be applied if it transfers the existing house meeting the requirements for non-taxation for one household within one year from the date of completion of the new house."

3) (Inasmuch as AA and the Plaintiff who donated the instant destroyed house to the Plaintiff constituted one household from May 1997, **, as long as there is no room for the application of the special provisions on non-taxation on two houses for the temporary one household, the Defendant’s assertion that there is no room for the application of the special provisions on non-taxation on two houses for the temporary one household from September 1998) began to reside in the apartment complex located in the ancient city, not the instant destroyed house from September 1, 1998*. The Plaintiff and the AA were not one household living with one another for the same period as the place of resident registration, and the AA was not a household living with one another for the same time as the place of resident registration, * on October 2010 ** on May 5, 2014, which was the time of the transfer of the instant destroyed house * as the Plaintiff and the AA as of May 2, 2014, were not one household.

C. Relevant statutes

The entries in the attached Table-related statutes are as follows.

D. Determination

1) Determination on the first argument

A) Under the principle of no taxation without law, the interpretation of tax laws and regulations shall be interpreted in accordance with the text of the law, barring special circumstances, and shall not be extensively interpreted or analogically interpreted without reasonable grounds. In particular, it accords with the principle of equity in 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 Decision 2008Du7830, Oct. 23, 2008).

Meanwhile, the purport of Article 89(1)3(a) of the former Income Tax Act and Article 154-1(1) of the Enforcement Decree of the former Enforcement Decree of the Income Tax Act, which does not impose income tax on the income accruing from the transfer of one house for one household, is to ensure that the transfer of one house owned by one household is not a transfer income, or temporarily residing or owning for the purpose of speculation, and is not a transfer of one house, in certain cases, by failing to impose income tax on the transfer income (see, e.g., Supreme Court Decision 200Du10465, Sept. 28, 200). The purpose of Article 89(1)3(b) of the former Income Tax Act and Article 155(1) of the former Enforcement Decree of the Income Tax Act is to acquire two houses temporarily by acquiring another house before transferring the house, and to impose income tax on the transfer of another house within 200 years from the date of acquisition by one household who owns one house in the Republic of Korea (see, e.g., Supreme Court Decision 2008Du387, etc.).

B) In addition to the facts recognized in the foregoing case and the purport of the entire pleadings in the statement in the evidence No. 3, the Plaintiff acquired and owned the destroyed house of this case *. The Plaintiff removed it around November 201 and newly built the substitute house of this case on the site * September 1, 201 *. The use approval was obtained on May 198 **. The instant house was acquired on May 1, 201 **, and transferred on May 5, 2014 *.

However, even if the Plaintiff removed the instant substitute house and newly built the instant substitute house on its site, it does not mean that the Plaintiff acquired the instant substitute house separate from the destroyed house (see, e.g., Supreme Court Decisions 97Nu10918, Jun. 9, 1998; 98Du13508, Dec. 8, 1998). This does not have any reason to deem any different even if the Plaintiff immediately removed the instant substitute house without using or making profits from the destroyed house, and then newly built the instant substitute house. As such, insofar as the Plaintiff transferred the instant house after three years from the date of acquiring the instant destroyed house ( August 27, 2010), so long as the transfer of the instant substitute house becomes subject to the special provisions on non-taxation of two houses for one household.

If the Plaintiff, as alleged otherwise by the Plaintiff, appears to have acquired a new house separate from the destroyed house of this case on the date of approval for use of the substitute house of this case, if it is owned without removal or new construction, it would be subject to the application of the aforementioned special provisions on non-taxation only within three years from the time of acquisition. In the case of removal or new construction of another house acquired, it would be possible to extend the grace period for the transfer of the previous house according to the time of removal or new construction chosen by the owner at his own discretion. In substance, even if the status of the two houses of one household is maintained for a long time, it would result in non-taxation, and it would be inconsistent with the original purpose of the above special provisions on non-taxation, and it would also be inconsistent with the principle of equity with the above cases. Moreover, even if the above special provisions on non-taxation were not applied within 155(1) of the former Enforcement Decree of the Income Tax Act and Article 17(1) of the former Enforcement Rule of the Income Tax Act (amended by Ordinance of the Ministry of Strategy and Finance, Mar. 10, 2017).

The plaintiff's assertion on this part is not acceptable.

2) Judgment on the second argument

A) Generally, in order to apply the principle of protecting trust to the tax authority’s acts in a tax law relationship, the tax authority should name the public opinion of taxpayers subject to trust, and the taxpayer should not be responsible for the taxpayer’s reliance on the tax authority’s reliance on the tax authority’s reliance on the tax authority’s reliance on the reliance on the reliance on the reliance on the reliance on the reliance on the reliance on the reliance on the reliance on the reliance on the reliance on the reliance on the reliance on the reliance on the reliance on the tax authority’s reliance on the reliance on the reliance on the reliance on the reliance on the tax law relationship

On the other hand, the principle of good faith or the principle of respect for tax practice under Article 18(3) of the Framework Act on National Taxes shall apply only to cases where there are special circumstances that, even if the principle of legality is sacrificeed, the protection of taxpayer's trust is deemed to correspond to justice. The interpretation of the tax law or the practice of national tax administration, which is generally accepted by taxpayers under the above Article 18(3), refers to a case where a wrongful interpretation or practice is accepted by a general taxpayer, who is not a specific taxpayer, without any objection, to the extent that it is not unreasonable for a taxpayer to trust such interpretation or practice. It cannot be deemed that such interpretation or practice exists merely on the sole ground that there was a public opinion on the standard of interpretation of the tax law. The burden of proving such interpretation or practice is the taxpayer (see, e.g., Supreme Court Decision 91Nu13670, Sept. 8, 192).

B) According to the overall purport of the statement and arguments in this case, the Ministry of Finance and Economy set a new rule to revise the contents of the existing rules (including new rules (including reports) to the effect that, in applying Article 155(1) of the Enforcement Decree of the Income Tax Act to "property 46014-10135, Nov. 22, 2002, 202, the Ministry of Land, Infrastructure and Transport (including redevelopment under the Urban Redevelopment Act and reconstruction under the Housing Construction Promotion Act) as "property 46014-10135," the reconstruction of existing houses should not be deemed new houses, not new houses, but the extension of existing houses (including reconstruction under the Urban Redevelopment Act and the Housing Construction Promotion Act) to the effect that new rules (including new houses acquired at the time of completion) should be applied from the first decision (including reports) made on Nov. 23, 2002 to the effect that new rules subject to taxation may have been transferred for the first time after November 23, 2002.

However, the Supreme Court precedents (Supreme Court Decision 97Nu10918 delivered on June 9, 1998, Supreme Court Decision 98Du13508 delivered on December 8, 1998, etc.) and the above established rules as seen earlier are contrary to the interpretation and review precedents of the Plaintiff’s assertion (the above authoritative interpretation on the grounds as seen above seems to have been deleted at present) and it is difficult to view that the contents thereof were justifiable to the general taxpayer, and it is difficult to deem that the taxpayer’s trust of such interpretation and practice was not unreasonable. The mere fact that the above authoritative interpretation and review precedents exist does not mean that the Defendant issued a public opinion of non-taxation on capital gains tax to the Plaintiff.

Therefore, this part of the plaintiff's assertion is without merit without further review.

3) Sub-decisions

The instant disposition is lawful (as long as AA and the Plaintiff, who donated the instant house destroyed to the Plaintiff, constituted a household from May 1, 1997*, there is no room to apply the special provision on non-taxation of two houses for one household temporarily, as long as the Defendant constituted one household from May 1, 1997). However, as long as the instant disposition is deemed lawful solely on the basis of the initial reason for the instant disposition, it does not proceed to the determination as to the said additional disposition).

3. Conclusion

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

1) On January 7, 2016, "the date of disposition stated in the complaint" appears to be a clerical error in "1.4, 2016," "1,000,000,000," "transfer income tax", "1,000,000,000,000," respectively.

심급 사건

서울행정법원 2018.09.11.선고 2017구단75296

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