Whether it constitutes three houses for one household to which the heavy tax rate is applied.

As of December 31, 2003, the Plaintiff is an owner of two houses for one household as of December 31, 2003, and thus does not fall under “persons falling under three or more houses for one household as of December 31, 2003” and is not subject to the transitional provisions.

Article 104 of the Income Tax Act shall apply to transfer income tax rates.

1. The plaintiff's claim is dismissed.

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

1. Disposition of refusal to rectify the transfer income tax;

A. On November 22, 1996, the Plaintiff acquired the right to sell ○○○○○○dong, ○○○○ apartment, 1, 401 Dong 401, 167.15 square meters (hereinafter referred to as “A apartment”), and on April 2, 2002, acquired on April 2, 2002, the Plaintiff paid the remainder of the registration of ownership transfer on December 9, 2004 by reducing ○○○○dong, ○○○ apartment, 405 Dong C, 129.6 square meters (hereinafter referred to as “B apartment”).

B. On April 19, 2004, the Plaintiff transferred B apartment and paid for preliminary return of KRW 117,974,340 of capital gains tax by applying the tax rate of 60% to the one household under Article 104 (1) 2-3 of the Income Tax Act (amended by Act No. 7006 of Dec. 30, 2003; hereinafter referred to as the "Income Tax Act"), considering that the Plaintiff is three houses for one household under Article 104 (1) 2-3 of the Income Tax Act. On September of the same year, the Plaintiff erroneously applied the capital gains tax rate to the Defendant on the ground of Article 16 of the Addenda of the Income Tax Act that provides for transitional measures against three or more owners of one household, and thus, the Plaintiff erroneously applied the capital gains tax rate to the Defendant on the ground of an error in applying the capital gains tax rate of KRW 60,254,604,604 (tax amount of KRW 57,719,736).

C. On November 8, 2004, the defendant against the plaintiff on February 6, 2004, since it cannot be viewed as "a person who has at least three houses for one household prior to December 31, 2003" and therefore, the defendant rejected the plaintiff's claim on the ground that the transfer of B apartment does not be subject to Article 16 of the Addenda of the Income Tax Act. [The ground for recognition] fact-free, Gap's 1, 2, 1, 2, 1, 2, 1, 1, 2, 1, 2, 1 through 3 in subparagraph 1, 2, and 2, the purport of the whole pleadings, and the purport of the whole pleadings.

2. Legal time for the instant refusal disposition

A. The parties' assertion

The defendant asserts that the rejection disposition of this case is lawful in accordance with relevant Acts and subordinate statutes, and the plaintiff asserts that the rejection disposition of this case is unlawful for the following reasons.

(1) In calculating gains from the transfer of assets, Article 98 of the Income Tax Act and Article 162 (1) of the Enforcement Decree of the same Act stipulate the time and time of acquisition, and they do not regulate matters related to the application of transitional measures such as Article 16 of the Addenda of the Income Tax Act. Thus, transfer or acquisition under the Income Tax Act should be based on whether the assets have been transferred at a cost regardless of registration or enrollment of assets. The plaintiff shall pay more than half of the down payment and intermediate payment and the remainder of the remainder, and since he actually used and profits from the apartment after October 31, 2003, while residing in the above apartment after October 31, 2003 and resided in the above apartment, and actually used and used the apartment, such as paying the down payment and intermediate payment, and thus, he actually received the C apartment at a cost after October 31, 2003. Thus, Article 16 of the Addenda of the Income Tax Act constitutes "person who falls under at least three houses for one household at the time of enforcement

(2) The Plaintiff received a C Apartment from October 31, 2003 to use and profit from it, and entered into a quasi-loan agreement with ○ Construction Co., Ltd. on December 29, 2003, which provides that the remainder of 218,819,000 won unpaid to C Apartment shall be the object of quasi-loan for consumption, and interest shall be the same as overdue interest under the apartment sale contract. As such, the Plaintiff’s C Apartment acquisition time is changed to quasi-loan for consumption, and therefore, the Plaintiff’s appeal under Article 16 of the Addenda of the Income Tax Act constitutes “a person who falls under three or more houses for one household at the time when the Act enters into force.”

(3) 2003. 12. 30. 소득세법의 개정으로 기존의 1세대 3주택 이상 소유자에게 예측 불가능한 피해를 중 우려가 있기 때문에 이들의 신뢰를 보호하기 위하여 소득세법 부칙 제16조에 '이 범 시행 당시 1세대 3주태 이상에 해당하는 자'에 대하여 경과규정을 두었늗데, 원고와 같이 개정된 소득세법 시행일인 2004. 1. 1. 당시 이미 A, B아파트 등 2주택을 소유하고 있었고 나머지 1주택인 C아파트에 대하여서도 계약금, 중도금을 모두 지급하고 잔금의 절반 이상을 지급하여 총 분양대금의 82%를 지급한 상태여서 위 법 시행 당시 1세대 3주택을 보유할 것이 확실히 예상되는 자에까지도 경과규정을 두지 않은 것은 합리적인 이유 없이 차별하는 것이어서 헌법 제11조의 평등권을 침해하거나 헌법 제23조의 재산권을 침해하는 것으로 위헌이다.

(b) Related statutes;

As shown in the attached Form.

C. Determination

(1) As to the first argument

In calculating gains on transfer of assets, Article 162(1) of the Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 18705, Feb. 19, 2005) provides that the date of liquidation of the price of the relevant assets shall be the date of acquisition or transfer. However, the above Enforcement Decree provides for the date of acquisition or transfer of assets in calculating gains on transfer of assets, but there is no ground to view that the above provision must be applied only when calculating gains on transfer of assets. In addition, in determining whether a household owns three houses, if it is asserted that a house has been acquired on the date of actual transfer of assets with compensation without setting the time of transfer or transfer according to the above provision, it is contrary to the spirit of the no taxation requirements and the principle of no taxation without law that specifies the clarity of non-taxation requirements, and thus, the Plaintiff’s assertion that the above provision is applied to the acquisition or transfer of assets is not acceptable (see, e.g., Supreme Court Decision 198Du1958, Jan. 19, 1995).

(2)As to the second argument

In the event that the seller of real estate extends the payment date to the buyer at the stage of the performance of the sale and purchase contract and receives money as consideration, whether the seller has agreed to convert the extended amount of money into the object of the loan for consumption, the seller has transferred the ownership of the object of the loan for consumption, so that the buyer can actually use and profit from the object, and whether the buyer has received overdue interest.

Article 5(2) of the C apartment sales contract concluded between the Plaintiff and ○○ Construction and ○○ Construction and Co., Ltd. for the purpose of the whole pleadings. According to Article 5(2) of the C apartment sales contract concluded between the Plaintiff and ○○○ Construction and ○○ Construction, when the agreed payment date has elapsed due to the delay in the payment of the intermediate payment and the remainder, the late payment amount calculated by applying the overdue rate for the general loan of ○○ bank shall be added and paid to the expiration date. Article 15(3) of the Act provides that the management expenses shall be borne regardless of the occupancy from the day after the expiration date of the designation period. Meanwhile, the Plaintiff did not pay the late payment of KRW 218,819,00 among the purchase price of the C apartment on December 29, 2003, but did not recognize the fact that the Plaintiff paid the late payment of KRW 694,746,858,262,364,294,270,362,41.

In light of the above facts, even if the plaintiff actually used C apartment from December 29, 2003, as alleged by the plaintiff, the plaintiff was only liable for the overdue interest on the remainder payment delay in accordance with the agreement under the sales contract, and there is no evidence to acknowledge the payment of the overdue interest on the conversion into a quasi-loan for consumption with interest, and it is difficult to view that there was an agreement for the purpose of a loan for consumption with interest on the remainder payment date. Since the payment of the overdue interest is made on the remainder payment date, it is difficult to recognize the establishment of a quasi-loan for consumption because it is difficult to recognize the existence of a quasi-loan for consumption because the plaintiff paid management expenses regardless of whether or not the expiration date

(3) On the third argument

The provisions of tax law are to be determined by legislators by comprehensively taking into account various factors, such as the historical situation at the time of legislation, general values of the people, legal sentiment, and tax policy aspects, and the broad range of legislative discretion should be recognized. Thus, it is too harsh and thus, it cannot be readily concluded that the provisions of Article 16 of the Addenda of the Income Tax Act violate the Constitution, unless they clearly violate the principles of equality and proportionality under the Constitution, such as where the balance in the tax system is significantly harsh, or they deviate from the necessary level in achieving the purpose of tax policy, etc.

3. Conclusion

Thus, the plaintiff's claim of this case is dismissed as it is without merit.