(영문) 대법원 2014.5.16.선고 2014두35126 판결

1. Article 99(1)2 of the former Restriction of Special Taxation Act (amended by Act No. 6762, Dec. 11, 2002; hereinafter the same) (hereinafter referred to as the “instant legal provision”) provides for a special taxation that a resident shall deduct capital gains accrued for five years from the date of acquisition of a newly-built house from a taxable income amount subject to capital gains tax in cases where a resident first concludes a sales contract with a housing developer within the newly-built house acquisition period (from May 22, 1998 to December 31, 1999 in cases of national housing) and transfers a newly-built house acquired by paying a down payment after five years from the date of its acquisition.

2. Upon citing the reasoning of the judgment of the court of first instance, the court below acknowledged the following facts: (a) on December 27, 1999, the Plaintiff’s husband B purchased the newly-built house in this case from Pungdong Construction Co., Ltd. (hereinafter “Pungdong Construction”), the newly-built house within the newly-built house acquisition period, and paid the down payment in accordance with the schedule, and acquired it on April 13, 2002; (b) thereafter, the Plaintiff, the spouse of B died on January 12, 2003 and solely inherited the newly-built house in this case; and (c) on October 31, 2008, the Plaintiff’s husband contributed to the sale of the newly-built house in this case; (d) the Plaintiff succeeded to the sale of the newly-built house in this case from Pungdong Construction; and (e) the Plaintiff transferred benefits from the transfer of the newly-built house in this case to the Plaintiff according to the death of B; and (e) determined that the Plaintiff’s tax exemption and exemption benefits from transfer income tax pursuant to the legislative intent of this case were unlawful.

3. However, such determination by the court below is difficult to accept for the following reasons. The legislative purport of this case is to activate the stable construction competition and real estate market by encouraging new construction and sale of housing through reduction or exemption of capital gains tax. In light of such legislative intent and text, it is clear that the subject of special taxation stipulated in the legal provisions of this case is, in principle, a resident who acquired a newly-built house directly from the housing constructor. Furthermore, Articles 9(1) and 40(1) of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 22037, Feb. 18, 2010) delegated by Article 9(4) of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 22037, Feb. 18, 2010) stipulate that the transfer income amount generated for five years from the date of acquisition of the newly-built house from the date of acquisition to the date of acquisition of the newly-built house in this case shall be interpreted to be unlawful in light of the following formula:

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.