Suwon District Court 2008Gudan3849 ( October 13, 2009)

National High Court 2004J 0777 (2004.06.07)

Whether it is applied to one house-free one household household under work circumstances to the circumstances of business of self-employed persons;

The circumstances of business refer to the case where the economic calculation and legal rights and duties belong to the principal, and it is reasonable to view that the circumstances of business refer to the case where the person to whom the property belongs performs work in return for economic compensation such as wages, and that the change in the location of the business place of the self

The contents of the decision shall be the same as attached.

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 of imposition of capital gains tax of KRW 1,327,500 against the plaintiff on August 4, 2003.

The court's reasoning for this case is as follows: (a) in the event that a house is transferred under the circumstances of business even though there is no reasonable ground to see the transfer of a house under the circumstances of business, the imposition of income tax on the transfer margin violates the principle of equality, and thus, (b) the Plaintiff's assertion that the disposition of this case is unlawful is bound to follow even if the employer is at a disadvantage in moving his residence with respect to the legitimate transfer order, etc.; (c) in such unavoidable circumstances, the Plaintiff took advantage of the legislative intent of the non-taxation provision of the transfer income tax in this case to ensure the stability of workers' residential life and the freedom of their residence by non-taxation from income tax due to the transfer of the house, and thus, (d) it cannot be deemed that the business operator excessively discriminates without any reasonable reason on the ground that the case of business is not determined as non-taxation or is not included

Therefore, the judgment of the first instance court is legitimate, and the plaintiff's appeal is dismissed. It is so decided as per Disposition.