The scope of unregistered transferred land, excluding those subject to tax reduction and exemption under Article 62(1) of the Regulation of Tax Reduction and Exemption Act, Articles 50(1) and 51(2)2 of the Enforcement Decree of the same Act;

Article 62(1) of the Regulation of Tax Reduction and Exemption Act, and Articles 50(1) and 51(2)2 of the Enforcement Decree of the same Act provide that even if a national transfers land to a national housing construction business operator, capital gains tax reduction or exemption shall not apply to unregistered transfer land under Article 70(7) of the Income Tax Act. Article 70(7) of the Income Tax Act provides that "unregistered transfer assets" mean that a person who acquires land transfers the transferred assets without registering the acquisition of the assets. The acquisition of assets under the above provision refers not only to specific succession but also to general succession and original acquisition.

Article 62 of the Regulation of Tax Reduction and Exemption Act, Article 50, Article 51 of the Enforcement Decree of the Regulation of Tax Reduction and Exemption Act, Article 70 of the Income Tax Act

Plaintiff 1 and one other

Head of the Cleanness Tax Office

1. The plaintiffs' claims are dismissed.

2. The costs of lawsuit are assessed against the plaintiffs.

As of December 17, 1984, the Defendant imposed capital gains tax of KRW 42,606,030 on Plaintiff 1 as of December 17, 1984 and KRW 974,610 as of the same day, and the defense tax of KRW 6,913,50 and KRW 304,940, respectively, on Plaintiff 2 as of the same day shall be revoked.

The costs of lawsuit are assessed against the defendant.

As of December 17, 1984, the Defendant imposed capital gains tax and defense tax on the Plaintiffs as of December 17, 1984, without any dispute between the parties. If the purport of the argument appears in Gap evidence Nos. 1, 2-1, and 2, the Plaintiffs were the successors of non-party 1 who died on April 17, 1979, and 9,231 square meters (2,792 square meters; hereinafter referred to as the “instant land”) of land outside Dongdaemun-dong, Dongdaemun-gu, Seoul, and 13 lots of land, 9,231 square meters (2,792 square meters; hereinafter referred to as “the instant land”), without completing inheritance registration in the future of the Plaintiffs, and transferred the ownership transfer registration on July 20, 198 to Non-party 3, who was a housing construction business operator, and applied for capital gains tax reduction or exemption on August 30, 198, and the Defendant did not apply capital gains tax reduction or exemption provisions to the Plaintiff 1, 60.

In regard to the Defendant’s assertion that the disposition of tax reduction and exemption of capital gains tax and defense tax is lawful, the Plaintiff’s exclusion from the benefits of capital gains tax reduction and exemption is against the fundamental purport of Article 62(1) of the Regulation of Tax Reduction and Exemption Act and Article 51(2)2 of the Enforcement Decree of the same Act is against the fundamental purpose of Article 18(1) of the Framework Act on National Taxes, that the Plaintiff’s exclusion from the benefits of capital gains tax reduction and exemption is unlawful because it is against the fundamental purpose of Article 18(1) of the same Act that, in the case of inheritance acquisition, not a specific succession acquisition, should not be unfairly infringed on by taxpayers’ property rights in light of equity in taxation and the purpose of the pertinent provision.

Article 62 (1) of the Regulation of Tax Reduction and Exemption Act, Article 50 (1) and Article 51 (2) 2 of the Enforcement Decree of the same Act provide that even if a national transfers a parcel of land to a national housing construction business operator, capital gains tax reduction or exemption shall not apply to the unregistered land under Article 70 (7) of the Income Tax Act, and Article 70 (7) of the Income Tax Act provides that a person who acquires an unregistered asset transfers a parcel of land without registration for the acquisition of such asset. The term "acquisition of an asset" means not only a specific succession but also a general succession and a case of acquisition of all assets such as original acquisition (see Supreme Court Decision 83Nu156, Jun. 28, 1983). The above provision is interpreted to the effect that the above asset acquisitor's transfer without registration will distort legal order by transferring it and hinder the exercise of the State's right of tax reduction or exemption, and thus, the defendant's disposition of capital gains tax exemption by applying the above provision to the plaintiff's specific succession.

Therefore, the plaintiffs' claim of this case is without merit, and each of them is dismissed, and the costs of lawsuit are assessed against the losing party and it is so decided as per Disposition.

Judges Lee Jae-chul (Presiding Judge)