Seoul Administrative Court 2008Gudan12521 ( December 18, 2008)

Cho High Court Decision 2008west0189 (No. 26, 2008)

In case of acquiring a leased house, whether the period of residence for the leased house for one household is included in the period of residence for at least two years;

Tax laws and regulations expressly stipulate that the period of residence shall be at least two years during the period of possession, and the period of residence as a tenant shall not be included in the period of residence for at least two years falling under the requirements of one house for one household, unless otherwise stipulated that the period of residence as a tenant shall be added up in two years.

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

1. The plaintiff's claim is dismissed.

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

The judgment of the first instance court shall be revoked. On August 7, 2007, the defendant shall revoke a disposition of rejection of correction against the plaintiff on behalf of the plaintiff.

1. Quotation of judgment of the first instance;

The reasoning for the court’s explanation on the instant case is that of the first instance court’s decision, except for the following determination as to the Plaintiff’s assertion added in the trial, and thus, this Court cited it as it is in accordance with Article 8(2) of the Administrative Litigation Act and the text of Article 420 of the Civil Procedure Act.

2. Determination on the Plaintiff’s assertion added at the trial room

The plaintiff asserts that, before the amendment of Article 154(1) of the Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 17751 of Oct. 1, 2002), only one house for one household with no capital gains tax imposed on him/her for three or more years, and the period of residence for two or more years was added due to the above amendment. However, since the plaintiff already met the period of possession for three or more years prior to the above amendment, the plaintiff is entitled to acquisition, and thus, he/she does not constitute one house for one household on the ground that he/she fails to meet the additional period of residence without any transitional provision for protection, it is retroactive taxation and thus, is not allowed against the principle of no taxation without law.

On the other hand, the principle of non-payment of tax law means that the pertinent tax law cannot be applied to the completed facts before the enforcement of the pertinent tax law, and it does not limit the application of new law to the taxation requirement facts (see, e.g., Supreme Court Decision 2001Du1168, Jul. 26, 2002). Furthermore, the amended Enforcement Decree of the Income Tax Act provides that "where the pertinent house is transferred by the lapse date of one household under Article 3 of the Addenda of the revised Enforcement Decree of the Income Tax Act, as the transitional measure for one house for one household under Article 3 of the Addenda of the revised Enforcement Decree of the Income Tax Act, the previous provision shall, notwithstanding the amended provision of Article 154(1), apply to the transfer of the house concerned by one household after the enforcement date, the former provision shall be applied." Thus, the plaintiff has already installed a system to protect the holder of the right who already meets the requirements of one house for one household (the same shall apply as seen earlier). Thus, the above amended provision and the disposition of this case cannot be accepted.

3. Conclusion

If so, the judgment of the court of first instance is justifiable, so it is the same as the disposition to dismiss the plaintiff's appeal.

shall be ruled.