The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. citing the reasoning of the judgment of the court of first instance, the court below acknowledged the Defendant’s preliminary return and payment of capital gains tax on August 10, 2006 by applying Article 104(1)2-3 of the former Income Tax Act (amended by Act No. 9897, Dec. 31, 2009; hereinafter the same) to the heavy tax rate of 60% for the transfer of “three or more houses for one household” under Article 104(1)2-3 of the former Income Tax Act (hereinafter “the heavy tax rate of one household three houses for one household”) to the Defendant by applying the scheduled return and payment of capital gains tax on August 10, 200,

Then, the lower court, contrary to Article 155(5) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 21301, Feb. 4, 2009) which provides that a person holding one house first transfers a house within two years after the person holding another house is married to a person holding two houses, does not explicitly stipulate that the application of heavy tax rate for three houses for one household shall be excluded, and there is no express provision excluding the application of heavy tax rate under the principle of no taxation without law.

The instant disposition is lawful on the ground that it is not allowed to expand or analogical interpretation without reasonable grounds, and that there is no such preferential provision in the statutes, and thus cannot be deemed as violating the right to pursue happiness, the freedom of marriage, the principle of equality, and the principle of proportionality under the Constitution.

2. However, the lower court’s above determination is as follows.