Plaintiff (Law Firm Taesan, Attorneys Kim Tae-hun, Counsel for the plaintiff-appellant)

Head of the District Tax Office

Seoul Administrative Court Decision 2011Gudan5417 decided August 30, 2011

February 29, 2012

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The judgment of the first instance shall be revoked. The defendant's rejection disposition against the plaintiff on December 17, 2009 shall be revoked.

1. cite the judgment of the first instance;

A. The part concerning the Plaintiff’s assertion is identical to the corresponding part of the judgment of the first instance court (the second to the last reduction), except in the following cases: (a) the reasoning for the use of the instant case is as follows: (b) Article 8(2) of the Administrative Litigation Act; and (c) Article 420 of the Civil Procedure Act.

○ The second fifth fiveth " May 31, 2009" is deemed to be " June 1, 2009", and the seventh " April 28, 2007" to be " April 29, 2007," respectively.

○ 6th day of the second half of the Restriction of Special Taxation Act (amended by Act No. 9921, Jan. 1, 2010; hereinafter the same) adds “the Special Taxation Act” to “the second sixth day.”

2. A new part.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

Article 99-3 (1) of the Restriction of Special Taxation Act provides that “Any income accruing from the transfer of a newly-built house (No. 2) constructed by a resident within five years from the date of acquisition by acquiring it in an area other than that prescribed by the Presidential Decree, shall be reduced by 80/100 (100/100 for the portion of transfer by December 31, 2009) of the capital gains tax; and where the relevant newly-built house is transferred after five years from the date of acquisition, capital gains accruing for five years from the date of acquisition thereof shall be subtracted from the amount of income subject to capital gains tax; “transfer income accrued for five years from the date of acquisition of the newly-built house” means the amount calculated pursuant to Article 99-3 (2) of the Enforcement Decree of the Restriction of Special Taxation Act, not from the amount of

According to Article 99-3(2) of the Enforcement Decree of the Restriction of Special Taxation Act, “transfer income accrued for five years from the date of acquisition of the newly-built house” means the amount calculated by applying mutatis mutandis the formula under Article 40(1) of the Enforcement Decree of the same Act, and Article 40(1) of the same Enforcement Decree provides that “transfer income 】 (transfer income 】 (Standard market price at the time of acquisition - standard market price at the time of acquisition - standard market price at the

In order to calculate the “transfer income accruing for five years from the date of acquisition of the newly-built house” to be deducted from the amount of income subject to capital gains tax, the standard market price at the time of acquisition shall be determined at the time of acquisition, five years from the date of acquisition necessary for the calculation, and at the time of transfer. In particular, in this case, the issue is when the “five years from the date of acquisition” is the

The transfer income amount to be deducted from the amount of income subject to transfer income tax is not the amount of transfer income actually accrued within a certain period from the acquisition date of a newly-built house, but is deemed the amount calculated by applying the formula with the standard market price at the time of the acquisition or transfer of a newly-built house as an element of the standard market price at the time of the acquisition or transfer. Thus, it is reasonable to interpret the “five years from the acquisition date of a newly-built house” as the standard market price at the “specified time of five years from the acquisition date of a newly-built house” in the above formula. There is no room to apply the provisions of Article 1

The fifth anniversary of the acquisition date of the instant house is April 29, 2007, which was five years from April 29, 2002, the acquisition date of the instant house, and even on Sundays on April 29, 2007, the standard market price publicly notified on April 30, 2007, is not applicable, but the standard market price in 2006, which is the standard market price in effect on April 29, 2007, is applicable. For the same reason, the instant rejection disposition by the Plaintiff is justifiable.

3. Conclusion

The plaintiff's appeal is dismissed.

[Attachment Form 5]

Judges Kim Jong-dae (Presiding Judge)