Seoul Administrative Court 2009Gudan1627 ( August 12, 2009)

early 208west2897 ( November 07, 2008)

Where both spouses own one-half shares in the capital gains tax reduction or exemption from a newly-built house;

Since an individual who has entered into a sales contract with the housing constructor and paid the down payment is eligible for reduction or exemption, only the husband who has acquired the first 1/2 shares is eligible for reduction or exemption of capital gains tax, and where 1/2 shares are donated

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

1.The decision of the first instance shall be revoked.

2. The plaintiff's claim is dismissed.

3. The total costs of the litigation shall be borne by the Plaintiff.

1. Purport of claim

The defendant's refusal of correction against the plaintiff on July 24, 2008 is revoked in excess of 113,341,981 won of capital gains tax for the year 2006 280,506,240 won.

2. Purport of appeal

It is the same as the disposition.

1.Basics

The following facts are not disputed between the parties, or can be acknowledged in full view of the purport of the entire pleadings in Gap evidence 1, 2, 3, and Eul evidence 1 to 3 (including additional numbers).

A. On May 16, 198, the Plaintiff acquired 159 million won in 00,000,000,000 ○○○○-dong 30-2, 00,000,000 in 10,000,000 in 10,000,000,000,000. On December 4, 2006, the Plaintiff transferred 1.325,000,000 won.

B. On the other hand, on September 27, 2001, the Plaintiff entered into a supply contract with ○○○○○ △△△△△△△△, 703, 1203, 103, 1203, 100,000,000,000 won for the sale price, and paid the down payment of KRW 157,100,000,000,000 on the same day, and donated 1/2 shares out of the sale price under the supply contract (hereinafter referred to as the “sale price”). The Plaintiff and the Plaintiff completed the registration of ownership transfer with respect to the newly-built house of this case on September 10, 204, respectively.

C. On February 28, 2007, when the Plaintiff filed a return on the application of the transfer income tax base of the instant house to the Defendant in relation to the transfer of the instant house, the Plaintiff voluntarily reported and paid KRW 280,506,240,00 calculated by applying the tax base amount of 81,684,000 to the transfer income tax amount of the instant house to the Defendant for the transfer income tax for the year 2006. On July 17, 2008, the instant newly-built house was later returned and paid to the Defendant on July 17, 2008, and the instant newly-built house was deemed as a newly-built house as prescribed in Article 9-3 (1) 1 of the former Restriction of Special Taxation Act (amended by Act No. 8146, Dec. 30, 2006; hereinafter the same shall apply) and was exempt from the transfer income tax for the transfer of the instant house (hereinafter referred to as “the instant special provisions”), 16316, 1960,1416 of the instant house.

D. As to this, on July 24, 2008, the Defendant rendered the instant disposition rejecting the Plaintiff’s claim for correction on the ground that the instant special provision does not apply to the portion of the newly-built house of this case.

2. The plaintiff's assertion

A newly-built house prescribed in Article 99-3(1)1 of the former Restriction of Special Taxation Act shall be determined based on the household units. Even if the Plaintiff, the original contractor of the newly-built house of this case, transferred the said one-half shares to the spouse living together by the Plaintiff, and was jointly owned, it shall be exempt from taxation as prescribed in Paragraph (c) above by applying the Special Provision in calculating the amount of capital gains tax of the Plaintiff.

3. Related Acts and subordinate statutes.

The entry in the attached Form is as specified in the relevant statutes.

4. Judgment

A. In light of the principle of no taxation without the law, the interpretation of tax laws and regulations shall be interpreted in accordance with the law, barring any special circumstance, and it shall not be extensively interpreted or analogically interpreted without any justifiable reason. In particular, it is also consistent with the principle of tax equity to strictly interpret the provisions that can be seen as clearly preferential provisions among the requirements for reduction and exemption (see, e.g., Supreme Court Decision 2008Du11372, Aug. 20, 2009). It is a newly-built house acquired from a housing construction business operator under Article 99-3 (1) 1 of the former Restriction of Special Taxation Act, which can be called as a preferential provision for exceptionally reducing and exempting the transfer income tax on the house acquired at a certain period of time, which is a newly-built house acquired from the housing construction business operator under Article 99-3 (1) 1 of the former Restriction of Special Taxation Act, which is the newly-built house acquisition period from May 23, 2001 to June 30, 2003.

B. According to the facts acknowledged earlier, ① the Plaintiff constitutes a person who first concludes the instant contract and pays the down payment with △△△△△, a housing developer, but ② the Plaintiff’s wife merely is a person who has received 1/2 shares out of the right to sell the newly-built house of this case from the Plaintiff, who is not a housing developer, and completed the registration of ownership transfer. ① The Plaintiff’s shares out of the newly-built house of this case are non-taxable shares, but ② the Plaintiff’s wife’s shares are not subject to non-taxation. However, the Plaintiff’s shares of 1/2 of the newly-built house of this case are not subject to non-taxation. (Co-ownership is divided into one ownership and belongs to several persons.

C. Therefore, the instant disposition in which the Defendant calculated the transfer income tax amount on the instant house by deeming the Plaintiff’s share of 1/2 on the instant house and the instant newly-built house owned by the Plaintiff as two houses per household is lawful.

5. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and since the judgment of the court of first instance is unfair with different conclusions, the defendant's appeal is accepted and the judgment of the court of first instance is revoked and the plaintiff's claim is dismissed as per Disposition.