The legitimacy of the assertion that a rental business operator is subject to reduction and exemption.

Even a housing rental business operator shall commence the lease before December 31, 200 pursuant to the provisions, but may benefit from the reduction or exemption of capital gains tax under the provisions above. However, for subparagraph 3 of the rental housing, it shall not be eligible for the reduction or exemption since it commenced the lease after December 31, 200.

Article 97 of Enforcement Decree of the Restriction of Special Taxation Act

1. The plaintiff's claim is dismissed.

2. Litigation costs shall be borne by the plaintiff.

The defendant shall pay to the plaintiff 9,37,570 won with 47,054,640 won from February 28, 2007; 47,054,640 won from April 17, 2007; 5,228,290 won with 5% per annum from May 31, 2007 to the delivery date of each complaint of this case; and 20% per annum from the next day to the day of full payment.

1.Basics

A. In order to operate a long-term rental house business, the Plaintiff purchased 22 square-type apartment units within the ○○○ Housing Site Development Zone constructed by the ○○ Housing Co., Ltd. and ○○ Construction Co., Ltd., and completed the registration of a rental business operator.

B. However, among the above apartments under subparagraph 5, with respect to apartments under subparagraph 2 constructed by ○○ Construction, the registration of ownership transfer was completed in the name of the plaintiff on January 27, 199, and each lease was commenced on December 199 and on January 1, 199, but the apartments under subparagraph 3 constructed by ○○ Housing shall be registered of ownership transfer in the name of the plaintiff on February 19, 201 due to the bankruptcy of ○ Housing, and each lease was commenced on January 201.

C. After the lapse of five years from the commencement of lease, the Plaintiff transferred each of the above rental housing to another person on December 2006, and asked questions as to whether to exempt capital gains tax pursuant to Article 97 of the Restriction of Special Taxation Act, but heard the answer that it is not eligible for exemption because it failed to meet the requirements prescribed by the above Act. On February 28, 2007, the Plaintiff reported the scheduled amount of capital gains tax of KRW 99,337,570 and the installment payment on three occasions from February 28, 2007 to May 31, 2007.

D. Meanwhile, around February 2007, the Plaintiff received a request for correction of the tax base and tax amount of capital gains tax to the effect that the instant rental housing is a rental housing subject to exemption under Article 97 of the Restriction of Special Taxation Act, but was subject to a rejection disposition. On October 2007, the Plaintiff filed a request for a judgment with the National Tax Tribunal on the grounds that it was also dismissed on January 15, 2008.

E. The relevant legal provisions at the time of commencement of the lease

Article 97 (Abatement or Exemption of Transfer Income Tax, etc. on Long-Term Rental Houses)

(1) In case where a national as prescribed by the Presidential Decree transfers a national housing falling under any of the following subparagraphs (including the land appurtenant thereto which is not more than twice the total floor area of the relevant building) after the lease for not less than 5 years after commencing on or before December 31, 2000, the tax amount equivalent to 50/100 of the transfer income tax or special surtax on the income accruing from the transfer of relevant house (hereinafter referred to as the "rental house") shall be abated or exempted: Provided, That in the case of a rental house from among the constructed rental houses under the Rental Housing Act, a rental house leased for not less than 5 years from among the purchased rental houses under the same Act, and a rental house (limited to the house which has not been occupied at the time of acquisition) leased for not less than 5 years from the acquisition and commencement of lease after January 1, 195, and a rental house leased for not less

The provisions of Article 17 (1) shall apply mutatis mutandis to the cases where a taxpayer is to file a report thereon.

1. Houses newly built during the period from January 1, 1987 to December 31, 2000; and

2. Multi-unit houses newly built on or before December 31, 1985 that had not been occupied as of January 1, 1986.

(2) In applying subparagraph 3 of Article 89 of the Income Tax Act, a rental house shall not be deemed a house owned by the relevant national.

(3) Any person who intends to have the transfer income tax or special surtax reduced or exempted pursuant to the provisions of paragraph (1) shall report the matters on the house lease and apply for the reduction or exemption of the tax amount.

(4) The calculation of the rental period for a rental house referred to in paragraph (1) and other necessary matters shall be determined by Presidential Decree.

Article 97 of the Enforcement Decree of the Restriction of Special Taxation Act

(1) The term “national prescribed by the Presidential Decree” in the main sentence of Article 97 (1) of the Act means a person falling under any of the following subparagraphs:

1. An individual who leases at least five rental houses;

2. A domestic corporation that leases not less than 5 rental houses (hereafter referred to as "rental housing business operator" in this Article).

(2) Not more than the paragraphs are omitted.

[Ground of recognition] Unsatisfy, Gap evidence Nos. 1 through 11 (including branch numbers in case of additional number), the purport of the whole pleadings

2. The plaintiff's assertion

The main text of Article 97 (1) of the Restriction of Special Taxation Act provides for general lessors, and the proviso provides for rental business operators under the Rental Housing Act, and as the plaintiff is a rental business operator, the full amount of capital gains tax shall be exempted pursuant to the proviso above. Nevertheless, as the defendant refused to file a claim for correction of capital gains tax requested by the plaintiff by applying the requirement of "after commencement of lease on or before December 31, 200," which is stipulated in the main text of Article 97 (1) of the Restriction of Special Taxation Act, the above rejection disposition is significant and obvious

3. Determination

A. Determination

The plaintiff argues that the main text of Article 97 (1) of the Restriction of Special Taxation Act provides that the proviso on general tenant is a provision on the rental business operator under the Rental Housing Act. However, the plaintiff's assertion can not be accepted for the following reasons. In conclusion, even if a rental business operator is a housing rental business operator, he can be entitled to benefit from capital gains tax reduction or exemption under the above provision only when he starts lease on or before December 31, 200 pursuant to the main text of the above provision. However, as seen earlier, the plaintiff started lease after December 31, 200 with respect to subparagraph 3 of the rental housing of this case. Thus, the plaintiff cannot be a person eligible for reduction or exemption under the above provision.

B. Grounds for the illegality of the Plaintiff’s assertion

(1) Grounds for grammatic interpretation

The main sentence of Article 97 of the above Act provides that "Korean nationals ----- the house in the case of transfer after the lease for not less than five years since the commencement of the lease prior to December 31, 2000" as prescribed by the Presidential Decree shall be "rental house". Thus, the rental house in the proviso shall not be interpreted as above unless there are special circumstances.

The plaintiff argues that the term "rental housing leased for not less than five years among constructed rental housing under the Rental Housing Act" does not overlap with the same contents as the main provision, but the above proviso provision is a provision for "construction rental housing which is not a "purchasing rental housing" defined in the main provision, so it cannot be said that it overlaps with the same contents.

(2) Grounds for legislative intent

As above, the amendment of December 29, 200, inserted the phrase “the commencement of the lease prior to December 31, 2000” as a condition for reduction and exemption, is to adjust the time limit for application of reduction and exemption since the support for tax reduction and exemption for the existing house has a negative impact on the lease through the newly-built house. However, if the same interpretation is interpreted as the Plaintiff, most of the applicable rental operators do not make a timely adjustment for the rental business operators falling under most of the eligible applicants. Such an interpretation may not be permitted in light of the purport of the amendment.

(3) Grounds based on the structure of the legal provision itself

In the same interpretation as the Plaintiff, there is no provision on reduction or exemption with respect to “the person, for whom five years have passed and ten years have not passed since the commencement of the lease of the purchased rental house among the rental business operators.” In this case, if the lease was commenced before December 31, 200, it may be interpreted that the main sentence such as the general lessor is applicable. However, even if the Plaintiff’s assertion is unreasonable, it may be interpreted that the rental business operator who commenced the lease after December 31, 200 is paid the full amount of the lease when the lease was not granted any reduction or exemption if the lease period was between 5 and 10 years, and the lease business operator was not granted any reduction or exemption. Such interpretation cannot be deemed to reasonably adjust the ratio of reduction or exemption. Accordingly, in the case of the Plaintiff’s assertion, it is inevitable to interpret the legal gap or unreasonable interpretation.

(4) Grounds for the interpretation of relevant legal provisions

Article 97 (1) of the Enforcement Decree of the Restriction of Special Taxation Act provides for the requirements of a resident eligible for reduction or exemption under Article 97 (1) of the same Enforcement Decree as the requirements for reduction or exemption, and Article 97 (1) of the same Enforcement Decree provides that in the case of the Rental Housing Act in force at the time of the enactment of the above provision and the purchased rental housing under its Enforcement Decree, a lessee of not less than five detached houses or five households or multi-unit houses may be registered as a rental business operator. In full view of the fact that Article 97 (3) of the Enforcement Decree of the Restriction of Special Taxation Act provides for the method of application for reduction or exemption under Article 97 (3) of the same Enforcement Decree of the same Enforcement Decree which provides for the method of application for reduction or exemption under Article 97 (4) of the same Enforcement Decree of the same Act, the provisions of Article 97 (1) of the Restriction of Special Taxation Act do not distinguish between the main sentence or proviso or the proviso of Article 97 (1) of the same Enforcement Decree from the Rental Housing Act.

4. Conclusion

Therefore, the defendant's rejection disposition against the plaintiff's request for correction is legitimate, and the plaintiff's claim of this case is dismissed as it is without merit.