Whether reconstruction apartment also constitutes the requirement of non-taxation of two houses for one household following the substitute acquisition

As to the reconstruction apartment, it is reasonable to view that the general rule above has changed its contents to the extent consistent with the new rules after November 23, 2002. Thus, the reconstruction apartment should be regarded as an extension of the existing house.

Article 89 of the Income Tax Act

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's rejection of a claim for correction regarding KRW 28,391,630 of the transfer income tax belonging to the year 2004 against the plaintiff on August 18, 2005 shall be revoked.

1. Quotation of judgment of the first instance;

The reasoning for this Court’s explanation concerning this case is as follows, except for the addition of new arguments and judgments made by the plaintiff at the court of first instance as stated in Paragraph (2) below, and therefore, it is consistent with Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

2. The addition;

(a)in Part 3, 15, the following shall be added to the judgment of the first instance.

In addition, the transfer of the previous apartment of this case by the plaintiff from April 8, 1997 to the date falls under the requirement of non-taxation for two houses for one household at one time due to the substitute acquisition under the general rule of 89-15 of the Income Tax Act. Since the general rule of the above basic rule is the defendant's public opinion expression, it is against the principle of good faith and the principle of respect for tax practice under Article 18 (3) of the Framework Act on National Taxes that the defendant trusted the general rule of the above basic rule and opposed to the above basic rule.

General Rule 89-15 of the Income Tax Act (limited to two houses for one household on a temporary basis due to substitute acquisition)

(1) Even in cases where a resident who is one house for one household has newly acquired another house before transferring such house, and becomes two houses for one household temporarily, if he/she satisfies all of the following requirements, the transfer income tax shall be deemed as one house for one household, and he/she shall be exempted:

1. The previous house shall meet the requirements for non-taxation on one house for one household as of the date of transfer;

2. The previous house shall be transferred within one year from the date of acquiring another house.

(2) Where the former house falls under the provisions of Article 154 (1) of the Decree while the person who owns one house for one household has worn out the old house which he/she has purchased to build another house and owns it in the state of a vacant site, it shall be deemed as one house for one household.

(3) In cases of paragraph (2), when a new house is built, only one house for one household shall be deemed to be transferred within one year from the completion date of the relevant house.

(b)as of the fourth decision of the first instance, the following shall be added:

In addition, the principle of trust and 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 which are deemed to be consistent with the justice to protect taxpayers' trust even if they sacrifice the principle of legality. The interpretation of the tax law or the practice of national tax administration generally accepted by taxpayers under the above provision refers to a case of erroneous interpretation or practice, which is accepted by a general taxpayer who is not a specific taxpayer without objection, to the extent that it is not unreasonable for taxpayers to trust such interpretation or practice, and it cannot be deemed that such interpretation or practice exists merely on the sole basis of the fact that there was an expression of public opinion as to the standard of interpretation of the tax law (see, e.g., Supreme Court Decisions 91Nu9848, Apr. 28, 1992; 91Nu13670, Sept. 8, 1992).

However, there is no dispute between the parties that the general rule of the Income Tax Act was enforced from April 8, 1997. Meanwhile, according to the above evidence, in applying Article 155 (1) of the Enforcement Decree of the Income Tax Act to "property 46014-10135 of November 22, 2002, the Ministry of Finance and Economy" as "property 46014-10135 of the Income Tax Act", where the existing house is destroyed (including redevelopment under the Urban Redevelopment Act and reconstruction under the Housing Construction Promotion Act) and reconstructed (including reconstruction under the Housing Construction Promotion Act) due to the loss of fire, collapse, old age, etc. of the existing house, according to the existing rule of the National Tax Service, two houses are exempt from all of two houses for the first time after completion of the reconstruction of one house and the completion of the construction of one house constitutes two houses for the first time after the completion of construction, and it should be deemed that the new rule of the first time after 20 houses should be applied to the reconstruction of two houses (20.1).

Thus, it is reasonable to view that the contents of the above new rules and rules have been modified to the extent they are inconsistent with the above new rules after November 23, 2002. Thus, in this case where the existing apartment owned by the plaintiff was destroyed and reconstructed, and the transfer date of the previous apartment of this case was June 4, 2004, the above new rules and rules apply rather than the above basic rules.

Therefore, under the premise that the above basic rules are applied to this case, it is difficult to view that the defendant expressed a public opinion that is the subject of trust to the plaintiff, or that the contents of the above basic rules generally accepted by taxpayers have reached the interpretation of the tax law or the practice of national tax administration, and there is no other evidence to acknowledge this otherwise, the plaintiff's above assertion is

3. Conclusion

Therefore, the judgment of the court of first instance is just based on its conclusion, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.