1. Where a rental business operator purchases a house to be leased under the provisions of the Rental Housing Act, in applying the provisions of one house for one household under subparagraph 3 of Article 89 of the former Income Tax Act, whether it is against the principle of equality because it does not constitute non-taxation for capital gains tax on the transfer of the house if only one house for one household of the rental business operator is for only one house (negative)

2. Whether Article 89 subparagraph 3 of the former Income Tax Act, which is a provision that grants exemption from taxation, limits the applicant's right to freedom (negative)

1. It is difficult to see that the purchaser of multiple houses for carrying on a rental business and the purchaser of such houses without such purpose are essentially different in the capacity to pay taxes. In terms of the source of the taxable capacity, it is difficult to determine whether the aforementioned business objectives are the basis for classification. However, it is possible to establish special cases of non-taxation for policy purposes, but it is subject to the broad legislative formation authority of the legislators.

In addition, the non-taxation of capital gains tax on one house for one household is recognized to guarantee the stability of the residential life of the people and the freedom of their residence and move. If the rental business operator recognizes the special exception of Article 89 subparagraph 3 of the former Income Tax Act on the house owned for the purpose of lease, it is not likely that real estate speculation will be done using it. Therefore, it is difficult to view Article 89 subparagraph 3 of the former Income Tax Act to violate the principle of equality in terms

2. Article 94(1)1 of the former Income Tax Act, which imposes liability for tax payment, separates whether it infringes on a taxpayer’s fundamental right such as property rights, etc., and Article 89 subparag. 3 of the former Income Tax Act, which sets a non-taxable item for policy purposes, cannot be deemed as infringing on a taxpayer’s fundamental right on the basis of the establishment of a tax liability: Provided, That it cannot be deemed that a non-taxable item

The exclusion can only be disputed.

The definitions of terms used in this Act under Article 2 of the Rental Housing Act shall be as follows:

1. and 2. Omitted.

(c)the term “purchasing-rental housing” means housing leased by a rental business operator by acquiring its ownership through a sale or purchase;

4. through 5. Omitted.

Article 97 of the former Restriction of Special Taxation Act (amended by Act No. 6538, Dec. 29, 2001); (1) Where a national prescribed by the Presidential Decree transfers a national housing falling under any of the following subparagraphs (including the land not exceeding twice the total floor area of the relevant building appurtenant thereto) after the lease for not less than five years after commencing on or before December 31, 2000, the tax amount equivalent to 50/100 of the transfer income tax or special surtax on the income accruing from the transfer of the relevant house (hereinafter referred to as the "rental house") shall be reduced or exempted: Provided, That in case of a rental house from among the constructed rental houses under the Rental Housing Act, a rental house from among the purchased rental houses under the same Act for not less than five years, and a rental house (limited to the house not occupied at the time of acquisition) and a rental house from among the purchased rental houses under the same Act for not less than five years after acquisition and lease after commencing on or after January 1, 1995, the tax amount equivalent to 100/1:

1. Houses newly built between January 1, 1986 and December 31, 2000; and

2. An apartment house newly built on or before December 31, 1985 that had not been occupied as of January 1, 1986.

(2) In applying subparagraph 3 of Article 89 of the Income Tax Act, a rental house shall not be deemed a house owned by the relevant national.

(3) Any person who intends to have the transfer income tax or special surtax reduced or exempted under paragraph (1) shall make a report on the matters concerning the lease of a house and apply for reduction or exemption of the tax amount.

(4) The calculation of the rental period for a rental house referred to in paragraph (1) and other necessary matters shall be determined by Presidential Decree.

With respect to the following incomes under Article 89 of the former Income Tax Act (amended by Act No. 6781 of Dec. 18, 2002), no income tax on capital gains (hereinafter referred to as "capital gains tax") shall be levied:

1. and 2. Omitted.

3. Income accruing from a transfer of one house for one household prescribed by Presidential Decree (excluding high-class houses the total floor area, value, facilities, etc. of which exceed the standard prescribed by Presidential Decree of residential buildings) and its appurtenant land within the area calculated by multiplying the area of land on which a building is built by the ratio prescribed by Presidential Decree by

4. Omitted.

Article 68 (2) of the Constitutional Court Act

Article 6 (Registration of Rental Business Operators) (1) Any person who intends to rent housing of more than the number prescribed by Presidential Decree may file an application for registration with the head of a Si/Gun/Gu (referring to the head of an autonomous Gu; hereinafter the same shall apply

(2) A person who intends to register pursuant to paragraph (1) shall report to the head of a Si/Gun/Gu: Provided, That this shall not apply to minor matters prescribed by the Ordinance of the Ministry of Construction and Transportation.

(3) Necessary matters concerning standards, procedures, etc. for registration and reporting under paragraphs (1) and (2) shall be prescribed by Presidential Decree.

Article 97-2 (Special Cases of Reduction or Exemption of Transfer Income Tax on Newly-Built Rental Houses) (1) Where a national as prescribed by the Presidential Decree transfers a national housing falling under any of the following subparagraphs (including the land less than twice the total floor area of the relevant building appurtenant thereto) after renting it for not less than 5 years, the transfer income tax or special surtax on the income accruing from the transfer of the relevant house (hereafter in this Article, referred to as the “Newly-built rental house”) shall be exempted:

1. Constructed-rental housing under the Rental Housing Act that falls under any of the following items:

(a) A house newly built between August 20, 199 to December 31, 2001; or

(b) An apartment house newly built on or before August 19, 199 that had not been occupied as of August 20, 199; and

2. From among the purchased rental houses under the Rental Housing Act which fall under any of the following items, a rental house acquired on or after August 20, 1999 (limited to the case where a sales contract is concluded and a down payment is made during the period from August 20, 199 to December 31, 2001) and its lease is commenced (limited to the house which has not been occupied at the time of acquisition):

(a) A house newly built on or after August 20, 1999;

(b) For houses falling under subparagraph 1 (b):

(2) The provisions of Article 97 (2) through (4) shall apply mutatis mutandis to a newly-built rental house.

Article 97 of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 1736 of Aug. 14, 2001) (1) "Nationals prescribed by Presidential Decree" in the main sentence of Article 97 (1) of the Act means persons falling under any of the following subparagraphs:

1. An individual who leases at least five rental houses;

2. A domestic corporation that leases at least five rental houses (hereafter referred to as "rental housing business operator" in this Article).

(2) Article 32 (3) and (4) of the Enforcement Decree of the Income Tax Act shall apply mutatis mutandis to the scope and calculation of necessary expenses where buildings for other purposes, such as commercial buildings, are installed on the part or the same lot number of constructed rental houses under the proviso of Article 97 (1)

(3) A national who intends to report the matters concerning the lease of a house under Article 97 (3) of the Act shall have the location of the head or principal office of the relevant corporation within 3 months from the date of commencing the lease of the house as prescribed by the Ordinance of the Ministry of Finance and Economy.

means) submit it to the chief of the competent tax office.

(4) A person who intends to apply for tax abatement or exemption pursuant to Article 97 (3) of the Act shall submit an application for tax abatement or exemption as prescribed by the Ordinance of the Ministry of Finance and Economy, along with the tax base return for the taxable year whereto belongs the date of transferring the relevant rental house, to the head of the district tax office having jurisdiction over

1. Rental business registration certificate under Article 6 of the Rental Housing Act; and

2. Copy of lease contract.

3. Copy of the resident registration certificate or resident registration certificate of the lessee.

4. A certified copy of the register or a certified copy of land and building ledger of the rental house.

5. Other documents prescribed by the Ordinance of the Ministry of Finance and Economy.

(5) The period for lease of a rental house under the provisions of Article 97 (4) of the Act (hereafter referred to as the "period for lease of a house" in this Article) shall be calculated as follows:

1. The initial date in reckoning the house lease period shall be the day on which the house lease is commenced;

2. Where a corporation surviving a merger or a corporation established by a merger (hereafter in this Article, referred to as a "merged corporation") acquires and leases rental housing of a corporation extinguished by a merger (hereafter in this Article, referred to as a "merged corporation"), a period of a house lease by a merged corporation shall be added to a period of a house lease by a merging corporation;

3. If an inheritor acquires and leases a house by inheritance, the house lease period by a decedent shall be added to the house lease period by a heir; and

3-2. Where a special purpose company under subparagraph 5 of Article 2 of the Asset-Backed Securitization Act acquires a house from an asset holder and leases it pursuant to an asset-backed securitization plan registered pursuant to Article 3 of the same Act, the asset holder shall add the house lease period to the

4. The lease period for less than 5 houses shall not be regarded as the house lease period; and

5. In applying the provisions of subparagraphs 1 through 3-2, the period as prescribed by the Ordinance of the Ministry of Finance and Economy shall be included in the house lease period.

(1) For the purpose of the main sentence of Article 97-2 (1) of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 1736, Aug. 14, 2001), the term “national as prescribed by the Presidential Decree” means an individual or domestic corporation that leases two or more rental houses including one or more newly-built rental houses (referring to newly-built rental houses under Article 97-2 (1) of the Act; hereafter in this Article, the same shall apply), for 5 years or longer.

(2) The provisions of Article 97 (2) through (5) shall apply mutatis mutandis to the report, application for tax reduction or exemption, calculation of the period of lease, etc. of the matters of lease of a newly-built rental house: Provided, That in the case of purchased rental housing under Article 97-2 (1) 2 of the Act in applying mutatis mutandis the provisions of Article 97 (4), the documents prescribed in the subparagraphs of Article 97 (4) shall be submitted to the head of tax office having jurisdiction over the place of tax payment along with

1. Constitutional Court Decision 12-1, 188, 227 decided Feb. 24, 200; 98HunBa38 decided Feb. 24, 200;

Constitutional Court Decision 98Hun-Ba99 on July 20, 200, Supreme Court Decision 12-2, 95, 102-103

Constitutional Court Decision 96Hun-Ga5 on May 28, 1998, Supreme Court Decision 10-1, 541, 555

Constitutional Court Decision 2003HunBa24 dated September 23, 2004 16-2, 525

Cheong-gu Incheon Cheong-do

Attorney Choi taxi and 3 others

The Seoul High Court 2003Nu16862 revocation of the disposition imposing capital gains tax

1. All appeals against Article 2 subparagraph 3 of the Rental Housing Act and Article 97 of the former Restriction of Special Taxation Act (amended by Act No. 6538 of Dec. 29, 2001) shall be dismissed.

2. Subparagraph 3 of Article 89 of the former Income Tax Act (amended by Act No. 6781 of Dec. 18, 2002) does not violate the Constitution.

1. Case summary and the subject matter of the trial;

A. Case summary

During Ansan-si, the claimant acquired on July 21, 2001 and transferred on July 29, 2001 the land of 127.57 square meters on March 29, 1993, and paid transfer income tax after the final return on the tax base of May 28, 2002, the claimant filed a claim to rectify the transfer income tax of 20,732,90 won on June 12, 2002 to the head of Dongjak-gu to refund KRW 20,732,90 on the land of 570,00, 112,101 (hereinafter “the instant house”). Since the claimant's request to rectify the transfer of the instant house from August 20, 199 to December 31, 201, the head of Dongjak-gu Tax Office shall be deemed to fall under the transfer of 20,732,900, 204, 209, 302, 420, 29,29.

Accordingly, the claimant filed a lawsuit seeking revocation of the above rejection disposition with the Seoul Administrative Court (2003Gudan97) on September 5, 2003, and appealed to the Seoul High Court (2003Nu16862), and filed a petition for adjudication on constitutional complaint on October 21, 2004 by the Seoul High Court (2003Nu1682), Article 89 subparagraph 3 of the former Income Tax Act (amended by Act No. 6781 of Dec. 18, 2002), Article 2 of the Rental Housing Act, Article 97 of the former Restriction of Special Taxation Act (amended by Act No. 6538 of Dec. 29, 2001), and Article 97 of the former Restriction of Special Taxation Act (amended by Act No. 6538 of Dec. 29, 200) claimed that the right of equality of the claimant is unconstitutional.

(b) Object of adjudication;

The claimant filed a constitutional complaint against the adjudication under Article 89 subparagraph 3 of the former Income Tax Act (amended by Act No. 6781 of Dec. 18, 2002), Article 2 of the Rental Housing Act, and Article 97 of the former Restriction of Special Taxation Act (amended by Act No. 6538 of Dec. 29, 2001). However, Article 2 of the Rental Housing Act provides that the matters related to the case in question may be related to the case in question are limited to subparagraph 3 of Article 2 of the Rental Housing Act that requires ownership of the rental house, and the remainder is entirely irrelevant to the Rental Housing Act. Thus, only Article 2 subparagraph 3 of the Rental Housing Act shall be the subject of the adjudication. The contents of the relevant provisions related to the subject of the adjudication in

With respect to the following incomes under Article 89 of the former Income Tax Act (amended by Act No. 6781 of Dec. 18, 2002), no income tax on capital gains (hereinafter referred to as "capital gains tax") shall be levied:

3. Income accruing from a transfer of one house for one household prescribed by Presidential Decree (excluding high-class houses the total floor area, value, facilities, etc. of which exceed the standard prescribed by Presidential Decree of residential buildings) and its appurtenant land within the area calculated by multiplying the area of land on which a building is built by the ratio prescribed by Presidential Decree by

The definitions of terms used in this Act under Article 2 of the Rental Housing Act shall be as follows:

(c)the term “purchasing-rental housing” means housing leased by a rental business operator by acquiring its ownership through a sale or purchase;

Article 97 (Reduction or Exemption of Transfer Income Tax, etc. on Long-Term Rental Houses) (1) of the former Restriction of Special Taxation Act (amended by Act No. 6538 of Dec. 29, 2001) (1) Where a national prescribed by the Presidential Decree transfers a national housing falling under any of the following subparagraphs (including the land not exceeding twice the total floor area of the relevant building attached thereto) after starting the lease on or before December 31, 2000, after renting it for five years or more, the relevant house (hereinafter referred to as the "rental house"):

The tax amount equivalent to 50/100 of the transfer income tax or special surtax on the income accruing from the transfer shall be abated or exempted: Provided, That in the case of the rental housing leased for not less than five years from among the constructed rental housing under the Rental Housing Act, the purchased rental housing (limited to the housing not occupied at the time of acquisition) leased for not less than five years after acquisition and commencement of lease after January 1, 1995, and the rental housing leased for not less than ten years, the tax amount equivalent to 100/100 shall be abated or exempted.

1.A house newly built between January 1, 1986 and December 31, 2000.

2. An apartment house newly built on or before December 31, 1985 that had not been occupied as of January 1, 1986.

(2) In applying subparagraph 3 of Article 89 of the Income Tax Act, a rental house shall not be deemed a house owned by the relevant national.

(3) Any person who intends to have the transfer income tax or special surtax reduced or exempted under paragraph (1) shall make a report on the matters concerning the lease of a house and apply for reduction or exemption of the tax amount.

(4) The calculation of the rental period for a rental house referred to in paragraph (1) and other necessary matters shall be determined by Presidential Decree.

[Reference Provisions]

Article 97 of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 1736 of Aug. 14, 2001) (1) "Nationals prescribed by Presidential Decree" in the main sentence of Article 97 (1) of the Act means persons falling under any of the following subparagraphs:

1. An individual who leases at least five rental houses;

2. A domestic corporation that leases at least five rental houses (hereafter referred to as "rental housing business operator" in this Article).

Article 97-2 (Special Cases of Reduction or Exemption of Transfer Income Tax on Newly-Built Rental Houses) (1) Where a national as prescribed by the Presidential Decree transfers a national housing falling under any of the following subparagraphs (including the land less than twice the total floor area of the relevant building appurtenant thereto) after renting it for not less than 5 years, the transfer income tax or special surtax on the income accruing from the transfer of the relevant house (hereafter in this Article, referred to as the “Newly-built rental house”) shall be exempted:

1. Constructed-rental housing under the Rental Housing Act that falls under any of the following items:

(a) A house newly built between August 20, 1999 to December 31, 2001; or

(b)multi-unit houses newly built on or before August 19, 1999 that had not been occupied as of August 20, 1999;

2. From among the purchased rental houses under the Rental Housing Act which fall under any of the following items, a rental house acquired on or after August 20, 1999 (limited to the case where a sales contract is concluded and a down payment is made during the period from August 20, 199 to December 31, 2001) and its lease is commenced (limited to the house which has not been occupied at the time of acquisition):

(a)a house newly built on or after August 20, 1999;

(b) For houses falling under subparagraph 1 (b):

(2) The provisions of Article 97 (2) through (4) shall apply mutatis mutandis to a newly-built rental house.

(1) For the purpose of the text of Article 97-2 (1) of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 1736, Aug. 14, 2001), the term “national as prescribed by the Presidential Decree” means an individual or domestic corporation that leases 2 or more rental houses including one or more newly-built rental houses (referring to newly-built rental houses under Article 97-2 (1) of the Act; hereafter in this Article, the same shall apply), for 5 years or longer.

2. Claims by the claimant and grounds for dismissing a request filed by the court for adjudication of unconstitutionality;

A. The claimant's assertion

The claimant asserts that subparagraph 3 of Article 89 of the former Income Tax Act is as follows. Whether a rental business operator falls under a "rental house" under Article 97 of the former Restriction of Special Taxation Act, it cannot be interpreted that it constitutes a transfer of one house for one household under subparagraph 3 of Article 89 of the former Income Tax Act. In the case of a rental business operator under the Rental Housing Act, in applying Article 89 subparagraph 3 of the former Income Tax Act, if only one house for one household is owned by the rental business operator, the transfer income tax on the transfer of one house must be exempted. If it is interpreted that the rental house owned by the Rental Housing Act is included in the house owned by the resident without any reasonable reason in interpreting Article 89 subparagraph 3 of the former Income Tax Act, it is against the principle of equality under the Constitution, the right to pursue happiness, the right to equality, the right to freedom of residence and the right to occupation, and if it is not clearly prescribed in Article 89 of the former Income Tax Act, it violates the Constitution.

Since it is in violation of the principle of clarity.

In addition, Article 97 of the former Restriction of Special Taxation Act intends to increase the supply of rental housing in order to ensure the stability of the people's residential life and the freedom of their residence. In the case of rental housing under the same Act, the provisions that increase the tax reduction or exemption and expand the tax exemption benefits of one house for one household, not in the case of rental business under the Rental Housing Act, and does not purport to deprive the non-taxation benefits of one house for one household, if not in the case of rental housing under the same provision. In other words, Article 97 of the former Restriction of Special Taxation Act is premised on the premise that the non-taxation benefits of one house for one household are applied in the case of "rental housing under the Rental Housing Act" and in addition, in certain cases, the provision that grants non-taxation benefits of one house for one household, even if it is not a "rental housing under the Rental Housing Act."

The claimant did not separately seek the unconstitutionality of Article 2, subparagraph 3 of the Rental Housing Act.

B. Reasons for dismissing a court’s motion for unconstitutionality

In light of the fact that the registration of a rental business operator under the Rental Housing Act is not enforced, and that the mandatory rental period is relatively short of three years, it is necessary to impose capital gains tax on rental business operators as well as on rental housing inasmuch as it is not likely that all rental houses will be used in real estate speculation if they are excluded from a house owned by a rental business operator for the transfer of a house owned by a rental business operator. Therefore, even if a rental business operator is prohibited from receiving non-taxation benefits for one house for one household under Article 89 subparag. 3 of the former Income Tax Act except as otherwise provided for in the Act, the said provision does not violate Article 10 of the Constitution that provides for the right to pursue happiness, Article 14 of the Constitution that provides for freedom to move residence,

The purpose of Article 2 of the Rental Housing Act is to eliminate in advance the risks that may occur to the residence of homeless people due to disputes over the right of lease. In the case of a resident, etc. who has newly built a house for a certain period of not less than five years under Article 97 of the former Restriction of Special Taxation Act, the said rental house shall not be regarded as a house owned by the relevant national in applying the non-taxation provisions of Article 89 subparagraph 3 of the former Income Tax Act in the case of a resident, etc. who has rent a house for a long-term period of not less than five years, the said rental house shall not be regarded as a house owned

3. Judgment on the lawful requirements

A. The premise of the judgment

In the constitutional complaint under Article 68 (2) of the Constitutional Court Act, it should be the premise of a trial whether the law is in violation of the Constitution, and in this case, if the law is the premise of a trial, it should be the law applicable to the relevant litigation case, and the order of the trial is different depending on the unconstitutionality of the law, or the legal meaning on the contents and validity of the judgment differs depending on the unconstitutionality of the law (see, e.g., Supreme Court Decision 92HunBa8, Dec. 24, 1992; Supreme Court Decision 4, 853, 864; Constitutional Court Decision 93HunBa46, Jul. 21, 1995; Supreme Court Decision 7-2, 48, 58, etc.

According to Article 2 subparag. 3 of the Rental Housing Act, a person who has registered as a rental business operator may lease the relevant house only if he/she acquires the ownership of the relevant house. However, even if the above provision is judged to be unconstitutional, the fact that the claimant owns the relevant rental house does not change itself. Thus, the legality of imposing the transfer income tax of this case, which is the issue of the number of houses owned by the claimant, is irrelevant to the unconstitutionality of Article 2 subparag. 3 of the Rental Housing Act. Thus, Article 2 subparag. 3 of the Rental Housing Act did not meet the premise

B. Lawsuits on the interpretation of the law

Article 68(2) of the Constitutional Court Act limits the object of adjudication to “law” by providing that “when a request for adjudication on the constitutionality of a law is dismissed, the subject of adjudication shall be limited to “law.” Thus, a constitutional complaint filed under the same provision shall be a dispute over the unconstitutionality of a law or a legal provision itself.” The claimant’s claim for adjudication is unlawful (see Constitutional Court Decision 9Hun-Ba98, August 31, 200; Supreme Court Decision 12-2, 225, 231).

On the other hand, the claimant asserts that Article 97 of the former Restriction of Special Taxation should be interpreted as the claimant's assertion on the above provision itself, and there is no argument on the unconstitutionality of the above provision itself. On the other hand, the claimant asserts the meaning of Article 97 of the former Restriction of Special Taxation Act on the premise of proving the unconstitutionality of the method of interpreting Article 89 subparagraph 3 of the former Income Tax Act. The claimant's argument is merely the premise that Article 97 of the former Restriction of Special Taxation Act should be interpreted as the premise of proving the unconstitutionality of the method of interpreting Article 89 subparagraph 3 of the former Income Tax Act on the other hand, although the house which is mandatorily purchased under the Rental Housing Act should not be regarded as its own house in interpreting Article 89 subparagraph 3 of the Income Tax Act on the special taxation of one house for one household, the court shall determine whether the house constitutes Article 97 or 97-2

As such, Article 97 of the former Restriction of Special Taxation Act assumes that in the case of "rental housing under the Rental Housing Act", the non-taxation benefits for one house for one household shall be applied, and further, in certain cases, it is a provision that grants non-taxation benefits for one house for one household even if it is not a "rental housing under the Rental Housing Act". According to the claimant's understanding, Article 97 of the former Restriction of Special Taxation Act does not have any unconstitutionality.

In order for the claimant to dispute the law itself, the rental house of this case does not meet the requirements prescribed in Article 97 of the former Restriction of Special Taxation Act, and on the premise that the rental house of this case is included in his own house in the application of Article 89 subparagraph 3 of the former Income Tax Act, the legislation excluded from the rental house of this case must dispute the unconstitutionality of the legislation. However, the claimant does not apply to the claimant, but only causes the court's misunderstanding of the meaning of the law, which is not merely to criticize the result of the court's trial on the grounds of the issue of recognition of facts, evaluation and interpretation and application of the law. Thus, the claimant's request on this part is unlawful.

4. Judgment on the merits

(a) Whether it violates the principle of clarity;

(1) General theory

The principle of clarity is not required to the same extent in all laws, but may vary to the extent required by the nature of each law or each provision of the law, and may vary depending on the specificity of each constituent element and the background or circumstances established by such law. In general theory, in a case where a provision has the characteristics of benefits, the demand for clarity is mitigated compared with the case where it has the characteristics of benefits, the demand for clarity is required (see Supreme Court Decision 89Hun-Ga104, Feb. 25, 1992; Constitutional Court Decision 4,64, 78-79; Constitutional Court Decision 8Hun-Ga8, Jan. 31, 2002; Supreme Court Decision 14-1, 1,8).

(2) The claimant's assertion

The claimant pointed out a specific phrase of the article subject to the judgment of this case and did not dispute its uncertainty, and it is not clear that the claimant's assertion is not clear. If the claimant's argument is raised, since the rental business operator registered under Article 2 subparagraph 3 of the Rental Housing Act allows the rental business operator to run the rental house business only after acquiring the ownership of the house, a house which is naturally used for the rental business of the rental business operator should not be regarded as his own house when Article 89 subparagraph 3 of the former Income Tax Act is applied, but the relationship between Article 89 subparagraph 3 of the former Income Tax Act and Article 97 of the former Restriction of Special Taxation Act

It can be viewed as the argument that the court erred in its interpretation by failing to regulate the interpretation.

(3) Stoptop

(A) A non-taxation system for one house for one household;

1) Article 88(1) of the former Income Tax Act defines a transfer of assets as “the actual transfer of assets is made at a price due to sale, exchange, investment in kind in a corporation, etc., regardless of the registration or enrollment of the assets.” Article 94(1)1 of the same Act lists income generated from the transfer of land or a building as objects of taxation of capital gains tax. Thus, income from the transfer of a building is naturally subject to capital gains tax.

2) However, Article 89 Subparag. 3 of the former Income Tax Act provides that where one household owns one house and transfers it, no capital gains tax shall be imposed on the income accrued from such transfer.

3) Furthermore, the former Restriction of Special Taxation Act expands the special case of non-taxation on one house for one household under Article 89 subparag. 3 of the former Income Tax Act. In other words, if it is determined pursuant to Article 89 subparag. 3 of the former Income Tax Act, it shall not be deemed as a house owned by the taxpayer if it satisfies the requirements prescribed in Article 97 of the former Restriction of Special Taxation Act.

(B) Whether the interpretation of the legal provision is unclear or not

As to whether the transfer of the instant house becomes subject to transfer income tax in the instant case, it is necessary to find a legal provision applicable to the instant case by examining whether the provision applies to the systematic interpretation of the law, but the provision of the principle is applied, and whether the transfer of the instant house constitutes one house for one household under Article 89 subparagraph 3 of the former Income Tax Act, and then to examine whether the transfer of the instant house constitutes one house for one household under Article 97 of the former Restriction of Special Taxation Act, and if not, it is appropriate to levy transfer income tax on the transfer of the instant house. The court of the instant case reviewed in the order above, and judged that it is reasonable to levy transfer income tax on the transfer of the instant house, and the judgment of the court is correct.

The claimant, if the Rental Housing Act acquired the ownership of a house and carries on the rental business, the house purchased to carry on the rental house business, as a matter of course, is not deemed to be his own house in applying Article 89 subparagraph 3 of the former Income Tax Act.

Although asserting that the law enforcement authority should not recognize any logical reasoning, it is not possible to establish a non-taxation provision by the interpretation of the law enforcement authority without any special provision on non-taxation (see, e.g., Constitutional Court Decision 2000HunGa8, Jan. 31, 2002; Supreme Court Decision 14-1, 1, 8).

Meanwhile, it does not mean that the appellant’s assertion is unreasonable. The concept of constructed rental housing and purchased rental housing was introduced for the first time as the Rental Housing Act was amended by Act No. 4629 on December 27, 1993 under the former Rental Housing Construction Promotion Act, and at that time, it was stipulated that ownership should be acquired for purchased rental housing of a person registered as a rental business operator. Even if the rental housing acquired ownership through the revision of the former Rental Housing Act, it is obvious that it is not excluded from rental housing in the application of Article 89 subparag. 3 of the former Income Tax Act. The relevant court of this case is judged on the premise that it is natural.

In addition, Article 97-2 of the former Restriction of Special Taxation Act was amended on December 28, 199, and Article 97-2 of the former Restriction of Special Taxation Act was first recognized. In the application of Article 89-2 of the former Restriction of Special Taxation Act, Article 97-2 of the former Restriction of Special Taxation Act established a special exception that purchased rental housing by a rental business operator under the Rental Housing Act shall not be deemed a rental business operator's own house in certain cases, on the premise that the rental business operator's purchased rental housing under the Rental Housing Act is deemed a house owned by the rental business operator. This study also examined the legislative reasons for newly establishing Article 97-2 of the former Restriction of Special Taxation Act in order to promote the stability of the entire value of the houses of the middle and the low-income bracket and the low-income bracket and to support

According to Article 97-2 of the former Restriction of Special Taxation Act, if a rental business operator's purchased rental housing under all Rental Housing Act is not deemed to be his own house in applying Article 89-3 of the former Income Tax Act, the establishment of Article 97-2 of the former Restriction of Special Taxation Act, thereby allowing only some of the rental housing under the Rental Housing Act, which is subject to reduction in the scope of special cases, is entirely inconsistent with the legislative intent.

Thus, there is no system uncertainty in interpreting Article 89 subparagraph 3 of the former Income Tax Act. Therefore, this part of the claimant's assertion is without merit.

B. Whether the principle of equality is violated

(1) The claimant, in the case of a rental business operator under the Rental Housing Act, Article 89 of the former Income Tax Act

In applying the provision of one house for one household under subparagraph 3, if only one house for one household of the rental business operator is owned by the Rental Housing Act, the transfer income tax on the transfer of such one house shall be exempted, and if such a provision is not interpreted, it would be against the principle of equality by discriminating against other citizens without reasonable grounds.

(2) It is difficult to view that there are fundamental differences between the purchaser of multiple houses to operate a rental business, such as the claimant, and the purchaser of the same without such purpose, in the capacity to pay taxes. From the perspective of the source of the tax-bearing force, it is difficult to determine the existence of the above business purpose as the basis for classification. However, it is necessary to establish special cases of non-taxation for policy purposes, but it is within the broad legislative formation right of legislators. As seen above, Article 97-2 of the former Restriction of Special Taxation Act recognizes special cases concerning part of the rental housing under the Rental Housing Act, and it is apart from the assertion of infringement on the right to equality.

On the other hand, human beings under the Constitution are citizens of the creative and mature population with self-determination. They are democratic citizens who decide and form their own lives within the social community under their own responsibility based on their own life and social consciousnesss (see Constitutional Court Decision 96Hun-Ga5, May 28, 1998; Supreme Court Decision 10-1, 541, 555, May 28, 1998; Supreme Court Decision 10-1, 555, May 28, 1998; 20-1, 541, 555), whether to register a rental housing business as a rental business operator under the Rental Housing Act even if a rental housing business is operated (see Article 6 of the Rental Housing Act) and whether to acquire ownership of a rental housing is open to the claimant. Accordingly, the claimant should consider the advantages and disadvantages of each selective unit and select the most favorable alternative to them. In this context, it is a democratic model of citizens under the Constitution. In addition, our Court has any difference between the alternative parties.

Moreover, non-taxation of capital gains tax on one house for one household is recognized to guarantee the stability of the residential life and the freedom of residence and relocation (see Supreme Court Decision 92Nu12988, Jan. 19, 1993). If a rental business operator recognizes special cases as to Article 89 subparag. 3 of the former Income Tax Act on a house owned by a rental business operator for the purpose of lease, it is difficult to accept the claimant’s assertion in terms of policy.

Therefore, the claimant's assertion that a person who purchased a number of houses to operate a leasing business like the claimant and a person who purchased them without the same purpose treat the two arbitrarily on the basis of the essentially different titles is without merit.

(c)whether the right of happiness, the right of residence and the right of occupation are infringed;

The claimant asserts that it infringes the claimant's right to pursue happiness, etc. to regard all rental houses of rental business operators under the Rental Housing Act as their own house when Article 89 (3) of the former Income Tax Act applies.

On the other hand, Article 89 subparag. 3 of the former Income Tax Act does not restrict the claimant’s fundamental rights. The imposition of the claimant’s duty to pay tax is based on Article 94(1)1(c) of the former Income Tax Act, which provides for a taxable object of capital gains tax, and Article 94(1)1(c) of the same Act, which provides for a taxable object of capital gains tax. The claimant’s right to pay tax, notwithstanding that the said provision does not fall under a taxable object of capital gains tax, if the said provision is not excluded, the taxable object of taxation is limited to the claimant’s substantive fundamental rights. However, Article 89 subparag. 3 of the former Income Tax Act provides for a non-taxation provision on the premise that the liability to pay capital gains tax is established on the premise that the applicant

5. Conclusion

Therefore, Article 2 subparag. 3 of the Rental Housing Act and Article 97 of the former Restriction of Special Taxation Act (amended by Act No. 6538 of Dec. 29, 2001) are illegal, and all of the appeals are dismissed. Article 89 subparag. 3 of the former Income Tax Act (amended by Act No. 6781 of Dec. 18, 2002) is not in violation of the Constitution and is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yoon Young-chul (Presiding Justice)