early 208west2897 ( November 07, 2008)

Whether the special provisions on the reduction or exemption of newly-built house at the time of transfer to the wife after acquiring one/2 shares within the newly-built house acquisition period.

It is reasonable to interpret that the special provisions of this case are applicable to the newly-built house of this case, which is excluded from the house owned by the plaintiff and his household members, in calculating the total of the shares of the newly-built house of this case owned by the plaintiff as well as the shares of the newly-built house of this case owned by the same household members.

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

1. On July 24, 2008, the Defendant revoked a disposition of refusal to correct the portion exceeding KRW 113,341,981, out of the transfer income tax belonging to the year 2006,506,240, as the Plaintiff on behalf of the Plaintiff.

2. The costs of lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. Basic facts

A. On May 16, 198, the Plaintiff acquired and owned ○○○○○○○○-dong 30-2, 10-2, 10102 (hereinafter “instant house”) at KRW 159 million, and transferred the instant house at KRW 159 million on December 4, 2006.

B. Meanwhile, on September 27, 2001, the Plaintiff entered into a contract for the supply of KRW 157,100,000 on the same day with the purchase price of KRW 1203,00,000,000 for 7,000,00,000,000 from the ○○ Industrial Development Co., Ltd. (Seoul, ○○○○○○○, 7,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00.

C. On February 28, 2007, the Plaintiff filed a return on the tax base of transfer income with respect to the transfer of the instant house to the Defendant, and filed a voluntary return and payment of KRW 280,506,240 calculated by applying the tax rate of 36% to the transfer income tax base after deducting the acquisition value, necessary expenses, etc. from the transfer value of the instant house. On July 17, 2008, the Defendant filed a claim for correction of the newly-built house of this case to the Defendant on July 17, 2008, as a newly-built house under Article 99-3 (1) 1 of the former Restriction of Special Taxation Act (amended by Act No. 8146 of Dec. 30, 206) as a newly-built house of one household under Article 9-3 (2) 1 of the same Act, and thus, the transfer of the instant house constitutes the transfer of one household, with the exception of the transfer value of the instant house of one household.

D. On July 24, 2008, the Defendant rendered the instant disposition rejecting the Plaintiff’s claim for correction on the ground that the instant newly-built house was the joint name of the Plaintiff and the Plaintiff and the Do governor in Seoul Special Metropolitan City at the time of the transfer of the instant house, and that the instant special provisions do not apply to the shares of the Do governor in Seoul Special Metropolitan City, and that the instant special provisions do not apply to the shares of the Do governor in Seoul Special Metropolitan City.

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, 3 (including virtual number; hereinafter the same shall apply), Eul evidence 1 to 3, the purport of the whole pleadings

2. Claims and points of the parties concerned;

The plaintiff is subject to the special provisions of this case after entering into a contract on the newly-built house of this case within the newly-built house acquisition period stipulated by the special provisions of this case and acquiring it. Thus, the new-built house of this case should not be considered as a house owned by the plaintiff and his household members when determining one house for one household. However, the defendant asserts that the disposition of this case excluded from the application of the special provisions of this case based on the 1/2 shares donated to the Don Don-do among the newly-built house of this case is unlawful in violation of the legislative intent and tax equity of the special provisions of this case. The defendant asserts that the 1/2 shares of the newly-built house of this case in the name of the Don-do Don-si is excluded from the application

Therefore, the key issue of this case is whether the Plaintiff can be seen as a two-household holder of one household, considering the Plaintiff’s share of 1/2 of the newly-built house in this case as a separate house, different from the Plaintiff’s share.

3. Relevant statutes;

The entry of the relevant Acts and subordinate statutes is the same.

4. Determination

A. Under the principle of no taxation without law, the interpretation of tax laws shall be interpreted in accordance with the text of the law unless there are special circumstances, and shall not be extensively interpreted or analogically interpreted without reasonable grounds. However, in cases where it is necessary to clarify the meaning through the interpretation between the laws and regulations, the interpretation can be made for the purpose of interpretation by taking into account the legislative intent and purpose to the extent that it does not undermine the legal stability and predictability pursued by the principle of no taxation without law (see Supreme Court Decision 2007Du13784, Feb. 14, 2008).

B. However, in light of the above legal principles: (a) a newly-built house acquired by a person who first concludes a sales contract with a housing constructor during the newly-built house acquisition period and pays down payment shall not be deemed a house owned by the resident; (b) its legislative purpose is to promote new construction of a house and real estate market by encouraging the sale of a newly-built house through reduction of or exemption from transfer income tax; (c) the Plaintiff entered into an initial sales contract with a housing constructor within the newly-built house acquisition period; and (b) the Plaintiff’s shares in the newly-built house cannot be deemed a house owned by the Plaintiff in light of the language and text of the special provisions of this case; (c) even if the Plaintiff’s wife, his wife, holds 1/2 shares in the newly-built house in this case, the Plaintiff’s first contractor, as well as the remaining shares in the newly-built house owned house in this case, cannot be deemed as a house owned by the Plaintiff’s new-built house, and thus, it is difficult to view the Plaintiff’s remaining shares in the newly-built house as a new house in this case.

C. Therefore, in calculating the transfer income tax on the transfer of the instant housing, the instant disposition rejecting the Plaintiff’s request for correction on the premise that the special provisions of the instant case are not applicable is unlawful.

5. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is so decided as per Disposition by admitting it.