Seocho 209u2665 ( November 16, 2009)

Whether the special taxation is applied to the transfer of another house under the holding condition of the newly-built house subject to reduction

A newly-built house is excluded from a resident's house at the time of determining non-taxation for one house for one household, but it is not subject to non-taxation since it does not constitute a newly-built house excluded from the number of houses owned in Seoul Special Metropolitan City due to the amendment of relevant statutes on December 30, 202.

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

1. The plaintiff's claim is dismissed.

2. Litigation costs shall be borne by the plaintiff.

The Defendant’s disposition of KRW 24,810,110 for the Plaintiff on May 1, 2009 is revoked (the date of disposition of the claim appears to be the date of May 7, 2009).

1. Circumstances of the disposition;

A. On August 13, 2001, the Plaintiff (hereinafter referred to as the “instant housing association”) as a member of the △△ apartment reconstruction association (hereinafter referred to as the “instant housing association”) entered into a contract with 102 Do 1702 Do 1702 Do 1702 Do 1702 Do ○○○○-dong 670 Do Do 145.83 Do hereinafter referred to as the “instant newly-built house”) and paid the price as a member’s supply portion, and obtained approval for the use of the instant newly-built house on January 28, 2005 (the temporary approval date for use is October 31, 2003).

B. However, on May 29, 2006, the Plaintiff transferred ○○○○○○ apartment, 738, 1301 (hereinafter “instant transferred house”) and reported and paid KRW 22,963,820 as income tax on July 31, 2006.

C. After that, on June 27, 2008, the Plaintiff applied the special taxation of capital gains tax under Article 99-3(1)1 and (2) of the former Restriction of Special Taxation Act (amended by Act No. 6762 of Dec. 11, 2002; hereinafter referred to as the “former Act”) to the Defendant on the newly-built house of this case, and the newly-built house of this case is excluded from the resident’s house at the time of determining the non-taxation of one house for one household under subparagraph 3 of Article 89 of the former Income Tax Act (amended by Act No. 7873 of Mar. 3, 2006; hereinafter the same shall apply). Thus, as regards the income accruing from the transfer of the transferred house of this case, the provisions of non-taxation of one house for the above household should be applied, the Plaintiff was refunded the full amount of capital gains tax by filing a return and filing a request for correction with the Defendant.

D. After that, on May 1, 2009, the Defendant rendered the instant disposition imposing capital gains tax of KRW 24,810,110,000 on the instant newly-built house for which the new-built house was applied not by the former Act but by Article 29(1) of the Addenda of the Restriction of Special Taxation Act (amended by Act No. 6762, Dec. 11, 2002; hereinafter referred to as the “new-built house”) on the Plaintiff on the ground that there is no room for applying the special taxation of capital gains tax to the newly-built house for which ○○○ City was located, on the ground that the special taxation of capital gains tax for the newly-built house was not applied to the newly-built house for which 206 was reverted.

[Ground of recognition] Unsatisfy, Gap evidence 1, 2, Eul evidence 1 to 6 (including paper numbers)

Second, the purport of the whole pleading

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) The special taxation of capital gains tax under Article 99-3(1)1 and (2) of the former Act is applied to the newly-built house of this case, and the newly-built house of this case is excluded from the resident’s house at the time of determining non-taxation of the first house for one household under subparagraph 3 of Article 89 of the former Income Tax Act. Thus, the Defendant’s disposition of this case based on a different premise is unlawful, even if it is applied to the income accruing from the transfer of the transferred house of

(2) According to the '2006 revised tax law' published by the Ministry of Finance and Economy, the 'the main contents of the '2006 revised tax law' include excessive benefits from reduction or exemption of the special taxation system for transfer tax on a newly-built house introduced for the revitalization of the construction competition after the foreign exchange crisis, and the current real estate policy direction and the current real estate policy direction with which a multi-family house is used to correct this, the provisions for non-taxation on one house for one household are applied to the transfer of a newly-built house, deeming that the newly-built house was not owned by a multi-family house for 2007. Accordingly, if the newly-built house is transferred by 207, the newly-built house was not owned by the taxpayer, and the tax-related administrative practices with which the non-taxation provision for one house for one household is applied, were established, and the above special taxation on transfer of the newly-built house, which was made before December 31, 2007, generally accepted by the taxpayer and thus, is unlawful.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(1) First, Article 9-3(1) of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 17829, Dec. 30, 2002) provides that the transfer income tax shall be reduced by 10/100 of the transfer income tax on the income accruing from the transfer of a newly-built house (No. 2) constructed by a resident within five years from the date of acquisition; however, the provisions of Article 99-3(1) of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 17829, Dec. 30, 2002) stipulate that the transfer income tax shall be reduced by 10/10 of the transfer income tax; however, the provisions of Article 99-3(1) of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 17819, Dec. 30, 200; Presidential Decree No. 19532, Mar. 19, 2005).

According to the above facts, the newly-built house in this case is transferred on May 29, 2006 to ○○○, and the transferred house in this case constitutes a newly-built house under Article 99-3 (1) of the former Act, even if the newly-built house in this case constitutes a newly-built house under Article 99-3 (1) of the former Act, with respect to this case where the transferred house in this case, which is another house owned by the plaintiff, is transferred after the enforcement of the new Act, it is not applicable to Article 99-3 (2) of the former Act, and therefore, the newly-built house in this case located ○○○ City, as it does not constitute a newly-built house as excluded from the number of houses owned as provided for

Therefore, the Plaintiff’s first argument is difficult to accept.

(2) Second, the principle of good faith or respect for tax practices stipulated in Article 18(3) of the Framework Act on National Taxes can only be applied to cases where there are special circumstances deemed that the protection of taxpayers’ trust is consistent with the concept of justice even if they sacrifice the above principle of legality. Generally accepted tax law interpretation or practices refer to the extent that it would be unreasonable for taxpayers, who were not a specific taxpayer, to have accepted a wrongful interpretation or practice without any objection, to believe that such interpretation or practice would not be unreasonable. The burden of proof for the existence of such interpretation or practice is the taxpayer (see, e.g., Supreme Court Decision 2001Du1253, Oct. 25, 2002). Furthermore, it is difficult to find that the amended provisions of Article 97 of the Restriction of Special Taxation Act were not applied to cases where the Plaintiff transferred a newly-built house to a newly-built house or a newly-built house for the purpose of facilitating the construction of a newly-built house by 200, supra.

(3) Therefore, the Defendant’s disposition of the instant case at the same time is governed by the law.

3. Conclusion

Thus, the plaintiff's claim of this case is dismissed as it is without merit.