One house non-taxation requirement for one household of the house first transferred for the quantity of living together;

In cases where one household comes to own two houses by combining the households in order to support living together, even in cases of a house first transferred within two years from the date of joining, the house first transferred shall be exempted from the requirements for ownership and the requirements for residing.

Article 155(1) of the Enforcement Decree of the Income Tax Act

1. The plaintiff's claim is dismissed.

2. Litigation costs shall be borne by the plaintiff.

Purport of Claim

The Defendant’s imposition of capital gains tax of KRW 4,935,420 for the Plaintiff on June 9, 2006 shall be revoked.

1. Details of the disposition;

A. (1) On May 21, 1993, the Plaintiff acquired ○○○○○ apartment, 000 00 dong and 0000 dong (hereinafter referred to as “the apartment of this case”). The Plaintiff’s strong ○○○ on February 2, 1999, acquiring ○○○ apartment, 00 dong and 000 dong, ○○○○, 000 dong (hereinafter referred to as “○○ apartment”). (2) However, the Plaintiff and Gangnam ○○ did not reside in the apartment of this case and reside in the apartment owned by the other party. The Plaintiff resided in the apartment of this case from May 26, 1997 to November 19, 206 (the former residence from May 26, 1997 to February 1, 199). From May 26, 199 to December 19, 199).

(3) The Plaintiff transferred the instant apartment to Ma○○, and completed the registration of ownership transfer on December 29, 2005.

B. On June 9, 2006, the Defendant issued the instant disposition to the Plaintiff, on the ground that the Plaintiff met the requirements for ownership for at least three years with respect to the transfer of the instant apartment, but failed to meet the requirements for residence for at least two years, to exclude the application of the non-taxation provisions on one house for one household, thereby imposing capital gains tax of KRW 4,935,420 for the year 205.

C. The plaintiff raised an objection against the defendant on June 16, 2006, but the application was dismissed on the 30th of the same month, and on September 6, 2006, the request for examination was rejected by the Commissioner of the National Tax Service on October 30 of the same year.

[Ground of recognition] Facts without dispute, Gap 1, 2, 4 through 8, Eul 1 (including each number), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) According to the amendment of the Enforcement Decree of the Income Tax Act on October 1, 2002, the Plaintiff already owned the apartment house of this case for not less than 3 years (not less than a year) at the time when the requirements for residence were first stipulated in the scope of one house for not less than 3 years, and thus, the above amendment clause, which allowed the Plaintiff to impose capital gains tax on the Plaintiff by infringing the Plaintiff’s vested rights, violates the provisions of retroactive legislation prohibition under Article 13 of the Constitution, and thus, the Plaintiff did not have any purpose of speculation. The Plaintiff did not have any purpose of holding the apartment house of this case for the purpose of residence. Although there were various policy measures for preventing and regulating speculative act and recovering non-income from speculative act, the housing owners in a certain area including Seoul were uniformly considered the requirements for residence for not less than 3 years and added the requirements for residence (in the above amendment, the existing requirements for residence have been strengthened for not less than 2 years due to the amendment of the Enforcement Decree of the Income Tax Act on November 20, 2003).

(2) The Plaintiff had a son’s workplace and grandchildren live in the instant apartment instead of residing in the Dog apartment owned by the Plaintiff, due to the school problems of the son’s workplace and grandchildren. As long as a son’s lineal family who has formed the same household as the Plaintiff resided in the instant apartment, it should be treated equally as having resided in the instant apartment, so the instant disposition without recognizing it is unlawful.

(3) On December 2, 2005, the Plaintiff’s strong ○○○ transferred the Plaintiff’s apartment to the Plaintiff and the Plaintiff’s household in order to care together with the Plaintiff on December 2, 2005, and thus, the transfer income tax should be exempted in the case of the transfer of the instant apartment located within two years from the date pursuant to Article 15(4) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 19254, Dec. 31, 2005; hereinafter the same) and Article 3(3) of the Addenda of the former Enforcement Decree of the Income Tax Act (amended by

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(1) Determination as to the assertion of the above 2. A. (1)

Article 13 of the Constitution of the Republic of Korea only means that the relevant tax law cannot be applied to the completed facts prior to the entry into force of the relevant tax law, and it does not limit the application of new laws and regulations on the taxation requirements that occurred thereafter. Thus, even if the continued fact of the ownership of apartment of this case is recognized as the ownership of apartment of this case, so long as the taxation requirements of the transfer of apartment of this case have not yet been completed, it cannot be deemed that it goes against the principle of non-sufficiency in tax laws and regulations. As part of the real estate policy for the healthy development of the national economy, if a person who did not acquire real estate for speculative purposes by limiting the area with high speculative demand as a part of the real estate policy for the sound development of the national economy, any person can meet the requirements of residence and provides various exceptions corresponding to the reasons why no one can meet the requirements of residence. On October 1, 2002, if the house is transferred by the date when the Enforcement Decree of the Income Tax Act enters into force on October 1, 2002, the previous provision of Article 2000.

Article 154 (1) of the former Enforcement Decree of the Income Tax Act provides that the meaning of "one household" in the "one house for one household which is exempt from capital gains tax" refers to a household in which a resident and his spouse live together with the family members who live together with the same address or same place of residence. Article 154 (6) of the same Act provides that "family member" means a lineal ascendant or descendant (including his spouse) and sibling of the resident and his spouse, and includes a person who temporarily left the original domicile or place of residence for school attendance, medical treatment for diseases, work or business conditions. As seen earlier, the plaintiff and Gangseo ○, as seen in the above, did not reside in the apartment owned by their own owner and changed it to one another for more than 9 years (including the period during which he resided in the place of full-time) and Gangnam ○○○ separately resided in the apartment owned by the other party for more than 12 years and therefore, it is difficult to view that the plaintiff and Gangnam ○○ as a family living together with the same address or same place of residence."

Article 155 (4) of the former Enforcement Decree of the Income Tax Act provides that "where a person having one house and forming one household joins the households in order to care for a lineal ascendant possessing one house (5 years old in case of a woman) by living together, and one household comes to own two houses, the house which is first transferred within two years from the combining date shall be regarded as one house for one household, and the provisions of Article 154 (1) shall apply to the house which is first transferred within two years from the combining date." However, even in this case, since the requirements for possession and residence under Article 154 (1) are not satisfied with respect to the house which is first transferred, as long as the plaintiff did not meet the requirements for residence for the apartment of this case, the plaintiff's above assertion is without merit without further review."

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.

public official law, order of law,

Income Tax Act (amended by Act No. 7837 of Dec. 31, 2005)

Article 89 (hereinafter referred to as “transfer income tax”) shall not be levied on the following incomes:

3. Income accruing from transfer of such one house for one household as prescribed by the Presidential Decree (excluding expensive houses whose prices exceed the standard prescribed by the Presidential Decree) and the appurtenant land within the area calculated by multiplying the area of the land on which the building is built by the ratio as determined by region under the Presidential Decree (hereafter in this Article, referred to as the “land annexed to the house”);

Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 19254 of Dec. 31, 2005)

Article 154 (Scope of “One House for One Household”)

(1) The term “one house for one household as prescribed by the Presidential Decree” in Article 89 (1) 3 of the Act means the case where a household comprised by a resident and his spouse together with the family living together with the same address or same residence (hereinafter referred to as a “one household”) in Korea as of the transfer date, and where the relevant house is held for not less than 3 years (in the case of a house located in the subdivision, day, mountain village, mountain village, mountain village, and mountain village as a planned area for housing site development under Article 3 of the Housing Site Development Promotion Act, the relevant house is held for not less than 3 years and the period of residence is not less than 2 years during the relevant retention period): Provided, That where one household possesses one house in Korea as of the transfer date and falls under any of the following subparagraphs, its retention period and residing period shall not be restricted:

(Dismissal omitted)

(6) The term "family" in paragraph (1) means the lineal descendants and descendants (including their spouses) and brothers and sisters of the resident and his spouse, and includes those who temporarily left the original address or dwelling place for school attendance, medical treatment, situations of work or business.

Article 155 (Special Cases in “One House for One Household”)

(4) In case where a person having one house and forming one household comes to combine the households in order to jointly live and support the lineal ascendants (including his spouse’s lineal ascendants) of 60 or more years old having one house (in case of a woman, 55 or more years old), and consequently, one household comes to own two houses, the house which is first transferred within two years from the combining date shall be regarded as one house for one household, and be subject to the provisions of Article 154 (1).

Addenda No. 17751, Oct. 1, 2002>

Article 1 (Enforcement Date) This Decree shall enter into force on the date of its promulgation.

Article 2 (General Application) This Decree shall apply to the first transfer after the enforcement of this Decree.

Article 3 (Transitional Measures for One House for One Household) (1) Where the relevant house is transferred by the date on which one year has elapsed after this Decree enters into force, notwithstanding the amended provisions of Article 154 (1), the previous provisions shall apply.

(2) In case where one household possesses two houses under Article 155 (4) and (5) at the time this Decree enters into force, a house which is first transferred within two years from the date of joining for the amount of living together or the date of marriage (limited to the relevant house whose retention period is for three years or more) shall be regarded as one house for one household, and be subject to the previous provisions, notwithstanding the amended provisions of Article 154 (1).

Addenda No. 18127, Nov. 20, 2003

Article 1 (Enforcement Date) This Decree shall enter into force on January 1, 2004.

Article 2 (General Application) This Decree shall apply to the portion transferred after the enforcement of this Decree.

Article 3 (Transitional Measures for Two Houses for One Household) (1) In case where one household temporarily possesses two houses at the time of enforcement of this Decree, and where it transfers the previous house within one year from the date of acquiring another house under the provisions of Article 155 (1), notwithstanding the provisions of Article 154 (1), the previous provisions shall apply.

(2) Where one household possesses two houses under Article 155 (4) and (5) at the time this Decree enters into force, the house which is first transferred within two years from the date of joining or the date of marriage for the amount of living together, shall be considered as one house for one household, and be subject to the previous provisions, notwithstanding the amended provisions of Article 154 (1).