Seocho 208west 3388 ( November 20, 2008)

Whether it is against the Constitution that three houses for one household due to marriage are not subject to the application of the special case of non-taxation for one household.

It is difficult to see that the reason that a single house holder is imposed more capital gains tax because he/she is treated as a three-house owner due to marriage does not affect the decision of the intention of marriage, and even if it is somewhat influenced, it is intended to achieve the legislative purpose with the above provision of capital gains tax.

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

Article 89 (Non-Taxable Transfer Income Tax)

Article 155 (Special Cases in One House for One Household)

1. The plaintiff's claim is dismissed.

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

The defendant's refusal to request the reduction of capital gains tax of KRW 43,402,480 against the plaintiff as of August 5, 2008 shall be revoked.

1. Circumstances of the disposition;

가. 원고는 경기 ◇◇군 ◇◇읍 ◇◇리 282 ▢▢원두산아파트 114동 604호(이하 '이

While acquiring and holding the instant house on August 10, 200, the instant house was married with the △△△△△△ on August 10, 2006, which owns the two bonds on August 10, 2006.

나. 원고는 2006. 10. 20. 최❒❒에게 이 사건 주택을 양도하고, 그 후 1세대 3주택에 적용되는 세율을 적용하여 피고에게 양도소득세 43, 402, 480원을 자진 신고・납부하였다.

C. Then, the plaintiff asserts that the transfer income tax should be exempted due to the application of the special provisions on non-taxation of two houses for one household, which is the temporary marriage of 155 and 55 of the Enforcement Decree of the Income Tax Act in relation to the transfer of the house in this case. However, the defendant requested a correction of transfer income tax reduction in favor of the defendant. However, on August 5, 2008, on the ground that the above special provisions cannot be applied in the case of the plaintiff, the defendant issued a disposition of rejection of the request for the reduction

[Reasons for Recognition] Class A 2 through 6, 8, 9, 11 to 14, evidence No. 1, evidence No. 2-1, 2,

3 and 4, each entry and the purport of the whole pleading

2. Legal nature of the imposition disposition of the instant case; and

(a)the master of the plaintiff;

The Plaintiff asserts to the purport that the instant disposition based on the premise that Article 155(5) of the Enforcement Decree of the Income Tax Act cannot be applied to the transfer of the instant house, on the ground that the Plaintiff’s marriage with the spouse who owns two houses during one house was inevitable to constitute three houses for one household, and that there was no reason to treat the same differently from the marriage with the owner of one house. In this case, Article 155(5) of the Enforcement Decree of the Income Tax Act, which is a temporary non-taxation for two houses for one household due to marriage, should be applied to the case. In such a case, if the above provision is interpreted otherwise, the above provision itself is deemed to be in violation of Article 10 of the Constitution, which provides for human dignity and value, and Article 36(1) of the Constitution which provides for the guarantee of freedom of marriage, and thus, the Defendant cannot be applied to the transfer of the instant house.

(b) relevant statutes;

Article 89 (Non-Taxable Transfer Income Tax)

Article 155 (Special Cases in One House for One Household)

C. Determination

Article 155 (5) of the Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 21301 of Feb. 4, 2009) provides that in case where one household possesses two houses by marriage with a person who possesses one house, one house shall be transferred first within two years from the date of marriage, the house which is transferred first shall be considered as one house for one household, and the provisions of Article 154 (1) shall be applied within two years from the date of marriage.

In light of the principle of no taxation without law, or the requirements for tax exemption or tax exemption, the interpretation of tax laws is to be interpreted in accordance with the text of the law, barring any special circumstance, and it is not allowed to expand or analogically interpret without any reasonable reason, and in particular, it conforms to the principle of fair taxation to strictly interpret the provision that is obviously preferential in terms of the requirements for tax exemption or exemption (see, e.g., Supreme Court Decision 2003Du7392, May 28, 2004). Therefore, it is reasonable to deem that the above provision is not applicable in a case where the Plaintiff, who is a single house holder, is married to the △△△△△△△△

In addition, the reason why the capital gains tax provisions are set out for the holder of multi-households is to ensure the stability of housing life of many people by preventing the ownership of limited goods, which are housing, by means of securing the stability of housing life of the majority of people and recovering income generated from real estate speculation from tax, and thereby preventing the sound development of the national economy. Accordingly, even if some multi-households bear capital gains tax more, it is difficult to view it as discrimination without reasonable grounds. In light of the purport of these provisions, it is difficult to view it as discrimination without reasonable grounds on the ground that there is a special provision for only one person with one house which is essential for his/her own housing life, so that he/she can avoid capital gains tax among the transfer income tax in certain cases, and there is no special provision for avoiding capital gains tax in relation to the case of the Plaintiff who married to his/her spouse.

In addition, in light of the fact that marriage is basically a combination of men and women on the basis of marriage and trust, it is difficult to view that the reason that a single house holder is imposed more capital gains tax because he/she is treated as a three-house owner is affected by the decision of the intention of marriage. Moreover, even though it is somewhat influenced by the above transfer income tax, it is recognized that there is a reasonable balance between the public interest to be achieved and the private interest infringed upon by the need to achieve the legislative purpose of the above transfer income tax and the above transfer income tax, and thus, it is deemed that Article 15(5) of the Enforcement Decree of the Income Tax Act violates Article 10 of the Constitution providing for human dignity and value and the right to pursue happiness, and Article 36(1) of the Constitution providing for the guarantee of freedom of marriage.

Therefore, there is no reason for the plaintiff's principal, and the disposition of this case is legitimate.

3. Conclusion

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