Whether it constitutes non-taxable two houses for one household temporarily;

If the period for recognizing the non-taxation of two houses for one household temporarily from the time of acquisition of the reconstruction apartment house is calculated, even if the status of two houses for one household substantially has been maintained for a long period, it would result in non-taxation of one house for one household, and would not be consistent with the purport of

Article 89 of the Income Tax Act

1. The plaintiff's claim is dismissed.

2. Litigation costs shall be borne by the plaintiff.

The defendant's rejection of a claim for correction against the plaintiff on August 18, 2005 shall be revoked as to capital gains tax of 28,391,630 won belonging to the year 2004.

1. Details of the disposition;

A. On March 28, 2001, the Plaintiff acquired and owned ○○○○○-dong, ○○○-1, ○○○○ apartment (hereinafter “instant apartment”) in ○○○-dong, ○○○-1, ○○○○ apartment, and upon the implementation of a reconstruction project on the instant reconstruction apartment, the Plaintiff invested the instant reconstruction apartment in the reconstruction association, and was selected as an occupant of ○○-dong, ○○○-dong, ○○○○○○○○ apartment (hereinafter “instant apartment”), which is scheduled to be constructed as a reconstruction, and obtained approval for the use of the instant apartment on April 29, 2004.

B. Meanwhile, the Plaintiff acquired and owned ○○○○○ apartment, ○○○○○○ apartment, ○○○○○, ○○○○ apartment, ○○○○○○, ○○○ apartment (hereinafter “former apartment”), and on June 4, 2004, which was within one year from April 29, 2004, the approval date for the use of the instant apartment, on the issue of the instant apartment, and transferred the previous apartment, and did not file a preliminary return on capital gains tax by regarding the transfer of one house for one household subject to non-taxation of capital gains tax.

C. After doing so, the Defendant filed a final return on capital gains tax for the transfer of the previous apartment of this case with the Plaintiff by May 31, 2005, or sent a notice prior to the notice that he would request the notification by May 18, 2005. Accordingly, on May 31, 2005, the Plaintiff filed a final return on capital gains tax for the transfer of the previous apartment of this case and paid KRW 28,391,630.

D. On June 4, 2004, the Plaintiff transferred the previous apartment of this case within one year from the date of approval for use of the apartment of this case, the Plaintiff asserted that the transfer of the previous apartment of this case constitutes a temporary transfer of two houses for one household under Article 155(1) of the Enforcement Decree of the Income Tax Act, and that the transfer income tax is exempt from capital gains tax. On June 28, 2005, the Plaintiff filed a request for correction to refund KRW 28,391,630 for the capital gains tax belonging to the transfer income tax of 204 paid to the Defendant.

E. As to this, the Defendant rejected the Plaintiff’s request for correction on August 18, 2005, on the ground that even if the Plaintiff had approved the use of the instant apartment on April 29, 2004, which owned the instant apartment on which the Plaintiff had possessed the instant apartment on June 4, 2004, it cannot be deemed that the household possessing one house in the Republic of Korea under Article 155(1) of the Enforcement Decree of the Income Tax Act cannot be deemed to constitute “cases of temporary two houses by acquiring another house before transferring the said apartment,” on the ground that the Plaintiff’s request for correction was rejected on August 18, 2005 (hereinafter “instant disposition”).

Grounds for Recognition: Facts without dispute, Gap 1's evidence 1, Gap 2's evidence, Gap 3's evidence 1, Gap 3's evidence, Gap 4's evidence, Gap 5's evidence

1. To comply with the descriptions of evidence 1, 2, 3, 9, and 10 of evidence 1, 17, 18, and 10;

2. Whether the disposition is lawful;

A. The plaintiff's assertion

On April 29, 2004, the plaintiff acquired the apartment at issue of this case after reconstruction of the apartment at issue of this case, so although the transfer of the previous apartment at issue of this case constitutes a temporary transfer of two houses for one household under Article 155 (1) of the Enforcement Decree of the Income Tax Act, the disposition at issue of this case reported differently is illegal.

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

The purpose of Article 155 (1) of the Income Tax Act is that if one household who owns one house in Korea comes to temporarily possess two houses by acquiring another house before transferring the house, the transfer income tax is not imposed on the transfer of one house for one household if it transfers the previous house within one year from the date of acquiring another house.

However, as seen earlier, if the Plaintiff acquired and owned the instant reconstruction apartment on February 12, 2001 and invested it in the reconstruction association and was selected as the occupant of the instant apartment in return for the said apartment, even if the Plaintiff obtained approval for the use of the instant apartment on April 29, 2004, which owned the previous apartment, and the Plaintiff transferred the previous apartment on June 4, 2004, within one year thereafter, it cannot be deemed that the Plaintiff acquired the instant apartment that is separate from the reconstruction apartment of this case, which is an existing apartment of this case (see, e.g., Supreme Court Decisions 200Du3535, Dec. 22, 200; 98Du13508, Dec. 8, 198; 195Du154(8) of the Enforcement Decree of the Income Tax Act, the Plaintiff’s assertion that the housing was temporarily reconstructed and destroyed during the period of possession of the said apartment within one-year period from the time of reconstruction cannot be deemed to fall under the previous apartment of this case.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.

1

public official law, order of law,

○ Article 89 of the Income Tax Act

(1) No income tax (hereinafter referred to as "transfer income tax") shall be levied on the following incomes:

1. Income accruing from a disposition by an adjudication of bankruptcy;

2. Income accruing from the exchange, separation, or integration of farmland falling under such cases as prescribed by the Presidential Decree;

3. Income accruing from transfer of such one house for one household as prescribed by the Presidential Decree (excluding expensive houses whose prices exceed the standard prescribed by the Presidential Decree) and the appurtenant land within the area calculated by multiplying the area of the land on which the building is built by the ratio as determined by region under the Presidential Decree (hereafter in this Article, referred to as the “land annexed to the house”);

4. Income accruing from substituted land for farmland falling under such cases as prescribed by the Presidential Decree.

§ 154. Scope of “one house for one household”

(1) The term “one house for one household as prescribed by the Presidential Decree” in Article 89 (1) 3 of the Act means the case where a household comprised by a resident and his spouse together with the family living together with the same address or same residence (hereinafter referred to as a “one household”) in Korea as of the date of transfer, and where the relevant house is held for not less than 3 years (in the case of a house located in a subdivision, day, mountain village, mountain village, mountain village, and mountain village as a planned area for housing site development under Article 3 of the Housing Site Development Promotion Act, the relevant house is held for not less than 3 years and the period of residence is not less than 2 years during the retention period): Provided, That where one household possesses one house in Korea as of the date of transfer and falls under any of the following subparagraphs, it shall not be subject to the restriction on the retention period and residing period (in case where the relevant house is owned by a household:

(8) In the calculation of the residence period or retention period in paragraph (1), if the house is reconstructed during the residence or retention period due to the loss by fire, collapse and wear-out, etc., the period of the destroyed house and that of the reconstructed house shall be summed up.

○ Special Cases concerning one house for one household under Article 155 of the Enforcement Decree of the Income Tax Act

(1) Where one household having one house in Korea comes to possess two houses temporarily by acquiring another house (including the case where it acquires by constructing by itself) before transferring the relevant house, and where it transfers the previous house within one year (including the case where it is impossible to transfer within one year, and where it falls under the causes as determined by the Ordinance of the Ministry of Finance and Economy) from the date of acquiring another house, it shall be considered to be one house for one household, and it shall be subject to the provisions of Article 154 (