Whether it has become four houses for one household by marriage with a temporary two house;

It is reasonable that the temporary 2 houses holders are not subject to non-taxation provisions for temporary 2 houses when they are married.

Article 89 (Non-Taxable Transfer Income Tax)

1. The plaintiff's claim is dismissed.

2. Litigation costs shall be borne by the plaintiff.

The defendant's rejection disposition against the plaintiff on November 11, 2005 regarding the transfer income tax of 54,672,120 won belonging to the year 202 shall be revoked.

1. Details of the disposition;

A. The plaintiff acquired two bonds as listed below, but sold one of them (hereinafter referred to as "one house of this case" and "two houses of this case").

No.

Date of acquisition

a house acquired

Date of sale;

1

September 30, 1999

○○○○○○○○○-dong ○○○○ apartment ○○○○○○○○○○○○○○○○

November 27, 2002

2

August 22, 2002

○○○-si ○○○○-dong ○○○○○○ ○○○○

B. On October 19, 2002, the Plaintiff married with Ma○○ on 19, 2002, and Ma○○ had two bonds as indicated below, and sold one of them.

Date of acquisition

a house acquired

Date of sale;

Jinay

September 15, 2000

○○○○ ○○○ ○-○ ○ ○○ ○○ ○○ ○○ ○○

March 6, 2003

December 27, 2001

○○○-si ○○○○-dong ○○○○○○ ○○○○

C. On May 30, 2003, the Plaintiff reported and paid 60,139,330 won (including resident tax 5,467,210 won) for the transfer of the instant house to the Defendant.

D. The Plaintiff asserted that the instant single house was transferred within two years from the date of marriage to the Defendant and filed a claim for correction of the tax base and tax amount of the capital gains tax originally reported pursuant to Article 155(5) of the Enforcement Decree of the Income Tax Act by asserting that it constitutes a non-taxation object of capital gains tax, but the Defendant rejected the said claim for correction on November 11, 2005 on the ground that the transfer of the instant one house does not constitute non-taxation (hereinafter “instant disposition”).

[Ground of recognition] Facts without dispute, Gap 1 through 7 evidence, Eul 1 and 2 evidence, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

In light of the general provisions of Article 155(5) of the Enforcement Decree of the Income Tax Act and Article 155(5) of the same Act, which is prepared to protect stable residence due to the New Marriage and prevent disadvantages due to marriage, where two houses temporarily for one household have become three houses for one household due to marriage, if they transfer the previous house within one year from the date of acquisition of the new house, the transfer of one house for one household and thus are exempt from capital gains tax, in light of the common provisions of the Income Tax Act, which provides for the exemption of capital gains tax. However, even if the Plaintiff and the Plaintiff’s husband were four houses for one household due to marriage while meeting the requirements for non-taxation of capital gains tax under Article 155(1) of the Enforcement Decree of the Income Tax Act, which is the Special Provision of Housing for one household, which is the Special Provision of Housing for one household, even if the Plaintiff transferred the two houses of this case within one year from the date of acquisition of the two houses of this case, the above transfer cannot be subject to capital gains tax, and thus the disposition of this case should be revoked.

(b) Related statutes;

Article 89 of the Income Tax Act (amended by Act No. 6781 of Dec. 18, 2002) (Article 89 of the Income Tax Act)

No income tax on transfer income (hereinafter referred to as “transfer income tax”) shall be levied on the following incomes:

3. Income accruing from a transfer of one house for one household (excluding high-class houses the total floor area, value, facilities, etc. of which exceed the standards prescribed by Presidential Decree of residential buildings) prescribed by Presidential Decree and the 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

Article 154 of the Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 17751 of Oct. 1, 2002), the scope of one house for one household

(1) The term “one house for one household” in subparagraph 3 of Article 89 of the Act means that a household comprised by a resident and his spouse together with the family members living together with him at the same address or same residence, has one house in Korea as of the transfer date, and the holding period of the relevant house is three years or more: Provided, That in case falling under any of the following subparagraphs, the restriction on the holding period shall not be applicable:

1. Where a constructed leased house under the Rental Housing Act is acquired and transferred, if the residing period from the date of leasing the relevant constructed leased house to the date of transferring the relevant house is five years or more;

2. The case falling under one of the following subparagraphs. In this case, the remaining house and its appurtenant land which are transferred within two years from the relevant transfer date or expropriation date shall be deemed to be included in the cases of items (a) and (b):

(a) Where the whole or part of the house and its appurtenant land are transferred to the executor of the relevant public project for which the compensation of losses is applied;

(b) Where being expropriated under the Land Expropriation Act and other Acts;

(c) Emigration or other cases prescribed by the Ordinance of the Ministry of Finance and Economy;

3. Where the house which has resided for not less than one year is transferred due to school attendance, circumstances of service, medical treatment of diseases, or other unavoidable reasons.

Article 155 of the Enforcement Decree of the Income Tax Act (amended by the Presidential Decree No. 17751 of Oct. 1, 2002) Special Cases concerning the first house for one household

(1) Where one household having one house in Korea has come to possess two houses temporarily by acquiring another house (including the case where it acquires by constructing by itself) before transferring the relevant house, if it transfers the previous house within one year (including the case where it is impossible to transfer within one year, and which falls under the causes as determined by the Ordinance of the Ministry of Finance and Economy) from the date of acquiring another house, it shall be deemed to be one house for one household, and the provisions of Article 154 (1) shall be applied.

(5) Where a person who possesses one house comes to own two houses by marrying another person who retains one house, the house which is first transferred within two years from the married date (limited to the relevant house whose retention period is not less than three years) shall be deemed to be one house for one household, and be subject to Article 154 (1).

○ The Addenda of the Income Tax Act No. 1755, Mar. 30, 2002

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

(Transitional Measures following Reduction of Period) Where one household which owns one house in Korea under the former provisions of Article 155 (1) at the time this Decree enters into force acquires another house before transferring such house, and where the permissible period for holding two houses for one household (two years) under the former provisions of Article 155 (1) has not expired, transfers the previous house by the date falling under any of the following subparagraphs, it shall be deemed as one house for one household, and the provisions of Article 154 (1) shall be applied:

1. Where the period from the date on which another house is acquired to the date on which this Decree enters into force does not exceed one year, one year has passed from the enforcement date of this Decree: Provided, That where the previous house meets the period of possession under Article 154 (1) (referring to the period of residence under subparagraph 1 of the same paragraph, in cases falling under subparagraph 1 of the same paragraph; hereafter referred to as the "period of possession, etc." in this subparagraph) after the lapse of six months from the enforcement date of this Decree, the date when six months has been added to the date on which the period of possession, etc.

2. Where the period from the date of acquiring another house to the date of enforcement of this Decree exceeds one year, two years from the date of acquisition of another house.

Article 154 of the Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 17751 of Oct. 1, 2002), the scope of one house for one household

(1) The term "one house for one household" in subparagraph 3 of Article 89 of the Act means that a household comprised by a resident and his spouse together with the family members living together with him at the same address or same residence as of the transfer date has one house in Korea as of the relevant date, and the retention period of the relevant house is not less than three years (in cases of a house located in the area of a party, a day-to-day, a mountain village, a usual village, a mountain village, and a new city as a planned area for housing site development under Article 3 of the Housing Site Development Promotion Act, the retention period of relevant house is not less than three years and the residing period is not less than one year during the retention period): Provided, That in cases where one household possesses one house in Korea as of the transfer date and falls under any of the following subparagraphs, the restriction on the retention period and residing period shall not

1. Where a constructed house for lease under the Rental Housing Act is acquired and transferred, if the residing period from the date of leasing the relevant constructed house for lease to the date of transferring the relevant house is five years or more;

2. The case falling under one of the following subparagraphs. In this case, the remaining house and its appurtenant land which are transferred within two years from the relevant transfer date or expropriation date shall be deemed to be included in the cases of items (a) and (b):

(a) Where the whole or part of the house and its appurtenant land are transferred to the executor of the relevant public project for which the compensation of losses is applied;

(b) Where expropriated under the Land Expropriation Act and other Acts;

(c) Emigration or other cases prescribed by the Ordinance of the Ministry of Finance and Economy;

3. Where the house which has resided for not less than one year is transferred due to the entrance into school, circumstances of service, volume of disease, or other unavoidable reasons.

Article 155 of the Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 17751 of Oct. 1, 2002) Special Cases concerning one house for one household

(1) Where one household having one house in Korea has come to possess two houses temporarily by acquiring another house (including the case where it acquires by constructing by itself) before transferring the relevant house, if it transfers the previous house within one year (including the case where it is impossible to transfer within one year, and which falls under the causes as determined by the Ordinance of the Ministry of Finance and Economy) from the date of acquiring another house, it shall be deemed to be one house for one household, and the provisions of Article 154 (1) shall be applied.

(5) Where a person who retains one house comes to own two houses by marrying another person who retains one house, the house which is first transferred within two years from the married date shall be deemed to be one house for one household, and be subject to the provisions of Article 154 (1).

Article 1 of the Addenda of the Income Tax Act (amended by Presidential Decree No. 17825, Dec. 30, 2002) is enforced.

This Decree shall enter into force on the date of its promulgation.

Article 3-1 of the Addenda of the Income Tax Act (amended by Presidential Decree No. 17825, Dec. 30, 2002); transitional measures against one house for one household under Article 3-1 of the Addenda of the Income Tax Act (amended by Presidential Decree No. 17551, Oct. 1, 20

(1) Where a house concerned is transferred not later than one year after this Decree enters into force, or where paragraph (3) of the Addenda to the Enforcement Decree of the Income Tax Act which is amended by Presidential Decree No. 1755, the former provisions shall, notwithstanding Article 154 (1), apply.

(2) Where one household possesses two houses at the time this Decree enters into force pursuant to Article 155 (4) and (5) at the time of entry into force of this Decree, 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 not less than three years) shall be regarded as one house for one household, and the previous provisions shall apply notwithstanding the amended provisions of Article 154 (1).

○ In case of three houses for one household due to inheritance, etc. during a substitute acquisition under General Rule 89-14 of the Income Tax Act, non-taxation due to the transfer of previous houses

Where a resident who owns one house for one household in Korea joins the households in order to support an inheritance or a marriage or a lineal ascendant under the provisions of Article 155 (4) and (5) of the Decree among the persons who own two houses temporarily after acquiring a new house before transferring such house, and consequently one household owns three houses, if he transfers the previous house within one year from the date of acquiring the new house, he shall be deemed the transfer of one house for one household, and be exempted from the transfer income tax.

C. Determination

According to Article 89 subparag. 3 of the former Income Tax Act, Article 154(1) of the Enforcement Decree of the Act (amended by Presidential Decree No. 17751 of Oct. 1, 2002), and Article 3 of the Addenda of the Enforcement Decree of the Act (amended by Presidential Decree No. 17751 of Oct. 1, 2002), where one household owns one house with a holding period of not less than three years in the Republic of Korea as of the date of transfer (one house for one household), capital gains tax shall not be imposed on the income accruing from the transfer of such one house. Article 15(1) and (5) of the Enforcement Decree of the Income Tax Act provides that where one household which owns one house in Korea acquires another house temporarily before it acquires another house, it shall not be imposed on the income accruing from the transfer of such house by deeming that it first becomes a new house within 15 years from the date of acquisition by another household, and that one household which owns one house within 15 years from the date of transfer of the previous house and one house within 2 years from the date of transfer.

On the other hand, the Plaintiff transferred the instant one house corresponding to one house for one household within one year from the date of acquiring the instant two houses. However, the instant one ought to be strictly interpreted according to the legal text, barring any special circumstances, by preventing the requirements of taxation or the requirements of non-taxation or tax reduction and exemption under the principle of no taxation without law. Article 155(5) of the Enforcement Decree of the Act provides for the same purpose as the Plaintiff claims, but the said provision applies only to the case where the Plaintiff is married with the person who owns one house and the person who owns one house, as clearly stated in the language and text, thereby owning two houses for one household.

However, in this case, the term "person who possesses one house" under the same provision should be regarded as one house for one household in accordance with the special provisions of the Enforcement Decree of the Act, such as the protection of a stable residential life and prevention of disadvantages caused by marriage. In other words, if one household who owns one house temporarily acquires another house before transferring the house, and later transfers the former house within one year from the date of acquiring another house, it should be regarded as including the person who owns two houses temporarily. However, in order to be regarded as one house for one household in accordance with the above special provisions, the concept of "transfer of the previous house" or the concept of "transfer of the house to one household" should be combined with the previous one, and if the two parties to marriage transfer the house within the previous period, it can only be regarded as one house for one household in accordance with the above special provisions, the concept of "one new house transfer to one household" under Article 155 (1) of the Enforcement Decree of the Act can not be regarded as a "one new house transfer to one household" under the same 5th of the previous house transfer.

If so, as in the case of this case, the temporary 2 houses holders did not satisfy the requirements of "a marriage with a person holding one house" under Article 155 (5) of the same Decree, and only if one party holding two houses temporarily married with the other party holding one house, he/she shall satisfy the above requirements under Article 155 (5) of the Enforcement Decree of the Income Tax Act. The general rules of the Income Tax Act, 89-14, which the plaintiff is placed, is an administrative rule that provides for the interpretation of Article 155 (5) of the Enforcement Decree of the Act, as administrative rules that issued the criteria for interpretation and enforcement of the tax law.

Furthermore, considering the purport of Article 155(5) of the Enforcement Decree of the Act, the Plaintiff’s assertion is to prevent restrictions on freedom of marriage due to the disadvantage of those scheduled to be exempted from capital gains tax due to marriage, as in the instant case, to the effect that the said provision should be included in the case of a temporary 2 house owner (the ownership of a two house shall be the maximum number of houses that are individually exempt from capital gains tax) who is originally scheduled to be exempted from capital gains tax until they are married. However, it is difficult to accept as an interpretation theory of the said provision in light of the principle of strict interpretation applicable to the provisions on non-taxation of tax, apart from the need to consider it legislatively.

Therefore, the Defendant’s disposition of this case, which reported that the transfer of the Plaintiff’s house of this case does not fall under the non-taxation requirement of capital gains tax under Article 89 of the Act and Article 155(5) of the Enforcement Decree of the Act

3. Conclusion

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