Seocho 2010Sho 3228 ( December 16, 2011)

Since it is transferred before the enforcement of the Enforcement Rule stipulating the requirements for reduction or exemption, it shall not be applied.

In the Enforcement Decree, it is clearly prescribed that "inevitable reason" is delegated to the Enforcement Rule, which is a subordinate statute, so it is reasonable to view that the requirements for capital gains tax reduction can be grasped only by the Enforcement Rule, and it shall not be applied until the enforcement of the Enforcement Rule, and it shall not be applied

2012Gudan7472 Revocation of Disposition of Imposing capital gains tax

United Nations AAA

Head of Yongsan Tax Office

May 1, 2013

May 29, 2013

1. The plaintiff's claim is dismissed.

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

The Defendant’s imposition of capital gains tax of KRW 000 against the Plaintiff on February 10, 2010 shall be revoked.

1. Details of the disposition;

A. On November 3, 2003, the Plaintiff acquired OOO-dong 000 O apartment 000 (hereinafter “instant house”) and transferred it on March 18, 2009 (hereinafter “instant transfer”), and on June 3, 2009, reported and paid capital gains tax of 000 won on the premise that there is no house other than the instant house.” (B) on May 9, 2005, the Plaintiff acquired OO-type 000 O-type 00 (hereinafter “O-type 00”) and owned it at the time of the instant transfer.

"C. The Defendant, on February 10, 2010, was the Plaintiff, and on the ground that the Plaintiff was two houses owned at the time of the instant transfer, the Plaintiff corrected and notified the transfer income tax of KRW 000 for the year 2009 (hereinafter “instant disposition”). The Plaintiff had undergone the pre-trial procedure.

[Reasons for Recognition] The non-contentious facts, Gap 1, 3, Eul 1-1, 1-2, and the whole purport of the pleading

2. Whether the disposition is lawful;

A. The plaintiff's assertion

(1) Article 15(8) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 22034, Feb. 18, 2010; Presidential Decree hereinafter referred to as the "Enforcement Decree") and Article 72(7) of the former Enforcement Rule of the Income Tax Act (amended by Ordinance of the Ministry of Strategy and Finance No. 83, Jun. 8, 2009; hereinafter referred to as the "Enforcement Rule") shall apply to the transfer of this case." (2) The plaintiff acquired a house at issue for dementia treatment and recuperation of MasiP on May 9, 2005, and according to each of the above provisions, the plaintiff cannot be deemed as a second house owner for one household regardless of the ownership of the house at the time of the transfer of this case. Accordingly, the disposition of this case made on a different premise is unlawful and must be revoked.

B. Relevant statutes

Attached Form is as shown in the attached Form.

C. Determination

(1) Under the principle of no taxation without the law, the interpretation of the tax law is not permitted, unless there are special circumstances, to the extent that it can be interpreted extensively or analogically without any reasonable ground, and in particular, it conforms to the original rules of tax equity (see, e.g., Supreme Court Decision 2002Du9537, Jan. 24, 2003). Article 155(8) of the Enforcement Decree provides that "it is a preferential provision that reduces capital gains tax, and it is not in force under Article 155(7) of the Enforcement Decree." Article 15(1)5 of the Enforcement Decree provides that "not only is it possible to enter into the school as provided by Ordinance of the Ministry of Strategy and Finance, but also it is not effective for the purpose of Article 80 or 80, and that it is not effective for the purpose of Article 72(7)5 of the Enforcement Decree of the Enforcement Decree, and that it is not effective for the purpose of Article 158(7)5 of the Enforcement Decree.

(2) Even if Article 15(8) of the Enforcement Decree of the Family Affairs and Article 72(7) through (9) of the Enforcement Rule apply to this case, and as the following, the transfer of this case does not meet the requirements for reduction or exemption. According to the above provisions, if a household which has acquired a house outside the Seoul Metropolitan area and another house (hereinafter referred to as “ordinary house”) transfers the ordinary house to another household for the purpose of medical treatment or recuperation, it shall be considered that it owns one house in the Republic of Korea, and if there is a disease for which one year or more of the household members need medical treatment or recuperation, it shall be included. It shall be considered that the household has not transferred the house to another Si (including the Special Metropolitan City and Metropolitan Cities). It shall be considered that 0, and if it is not possible for the household to move the house to another household for the purpose of medical treatment or recuperation, 10,000 or more of the household members, and 20,000 won of the household, and 16,000 or more of the taxpayer evidence 2.

(3) Ultimately, the instant disposition based on the same premise is lawful (the added defendant, and the plaintiff et al. possessed a house located in Gangnam-gu Seoul Metropolitan Government OO-dong 000 and two parcels at the time of the above transfer date, and the above argument is legitimate, but the above argument appears to be a separate fact that does not coincide with the original disposition reason and the basic facts, and the court as a court has no identity with the original disposition reason and the facts that do not constitute a ground for disposition cannot be acknowledged as a ground for disposition. Therefore, the above argument is without merit)

3. Conclusion

The plaintiff's claim is dismissed on the ground that it is without merit.