Where three or more houses are held, whether the calculation of the gains on transfer of the house first transferred by actual transaction exceeds the delegation limit of higher law is made, etc.

Even if each provision of the income tax law determines whether to impose the actual transaction value on the basis of "the number of houses held" only, it cannot be deemed that the upper law does not deviate from the purpose of the law and the limitation of delegation.

Article 96 of the Income Tax Act

1. The plaintiff's claim is dismissed.

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

1. Circumstances of dispositions;

A. On November 22, 2003, the Plaintiff transferred 116 square meters of ○○○○○○○○○-dong, ○○○○○○○○-dong, and 62 square meters of a house on its ground to KRW 180 million, and reported and paid capital gains tax of KRW 4,525,020 calculated based on the standard market price to the Defendant.

B. On December 1, 2004, the Defendant imposed an increase in capital gains tax of KRW 11,774,150 for the year 2003 calculated based on the actual transaction price on the ground that the Plaintiff owned three or more houses for one household at the time of transfer of the instant real estate (hereinafter “instant disposition”).

At the time of the transfer of the instant house, the house owned by the Plaintiff and the Plaintiff’s wife ○○○.

- ○○○○○○○-dong ○○-dong ○-○ multi-household 1st floor ○○○○○○ 47.42 square meters (ownership of ○○○)

- ○○○○○○-dong ○○-dong ○○ detached house 23.1 square meters (○○ ownership)

- ○○○○○○○○-dong ○○ multi-household ○○○○○○○○○○○○○○○○○○○○○○○ 35.6 square meters (Plaintiffs owned

- ○○○○○○○○○○ Housing 69.1 square meter (ownership by ○○○)

[Reasons for Recognition: Facts without dispute, 4/1 to 1/2 of Eul evidence, 4/1 to 2 of Eul evidence, 4-1, 2-1 to 5/1 of Eul evidence, and the purport of the whole pleadings]

2. Determination of legality of a disposition

(i)The plaintiff's assertion

First, it is against the principle of no taxation without the law because one household's concept is arbitrarily interpreted even if the spouse has different addresses and imposed it as one household.

Second, Article 96 (1) 7 of the Income Tax Act delegates the case of taxation as actual transaction price considering the type, holding period, number of possession, scale of transaction, and transaction method of the relevant assets. Article 162-2 (5) of the Presidential Decree stipulates that only the number of possession is imposed as actual transaction price, which is in violation of the upper law.

Third, Article 96 (1) 7 of the Income Tax Act is too short of the grace period for two months, resulting in the deprivation of the rights of the people retroactively, and there is no exception provision for tax houses, etc., so it violates the principle of excessive prohibition and the principle of tax equality.

(ii)related Acts and subordinate statutes;

The actual provisions of the Income Tax Act (amended by Act No. 7837 of Dec. 31, 2005) shall apply.

Article 89 (Non-Taxable Capital Gains)

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

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”);

Article 96 (Transfer Price)

(1) The transfer value of assets as prescribed in each subparagraph of Article 94 (1) shall be the actual transaction value between the transferor and transferee at the time of transfer of the relevant assets (hereinafter referred to as the “actual transaction value”).

1. Where the relevant assets fall under the standard for expensive houses under the provisions of Article 89 (1) 3 (including the land annexed thereto);

2. Where assets are rights to acquire real estates under the provisions of Article 94 (1) 2 (a);

3. Where assets are transferred without registration under the provisions of Article 104 (3);

4. Where assets are real estate within one year after acquisition;

5. Where real estate is acquired or transferred by illegal means, such as preparation of a false contract or a false transfer of resident registration, which meets the standards as prescribed by the Presidential Decree;

6. Where the transferor reports the actual transaction price at the time of transfer and at the time of acquisition to the head of tax office having jurisdiction over the place of tax payment by the deadline for final return under Article 110

7. Other cases prescribed by Presidential Decree in consideration of the size, holding period, holding number, scale of transaction, transaction methods, etc. of the relevant assets (amended on December 18, 2002).

Addenda (Law No. 6781, December 18, 2002)

Article 3 (General Application of Transfer Income Tax) The amended provisions of this Act concerning transfer income tax shall apply to the portion transferred after this Act enters into force.

The actual tax rate shall be the Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 18173, Dec. 30, 2003).

§ 154. Scope of one house for each household

(1) The term “one house for one household as prescribed by the Presidential Decree” in subparagraph 3 of Article 89 of the Act means the case where a household comprised by a resident and his spouse together with the family members living together with him at the same address or same residence (hereinafter referred to as “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, mountain village, or new urban area designated and publicly notified as a planned area for housing site development under Article 3 of the Seoul Special Metropolitan City, Metropolitan City, Si, and Housing Site Development Promotion Act, the relevant house whose retention period is not less than 3 years and whose retention period is not less than 2 years during the relevant 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,

Article 162-2 (Transfer Price)

(2) The case where the transfer value of assets is based on the actual transaction value under Article 96 (1) 5 of the Act shall be the case falling under any of the following subparagraphs, where real estate is acquired or transferred by unlawful means, such as preparation of a false contract or a false transfer of resident registration

1. Where real estate is traded in violation of the Act on the Registration of Real Estate under Actual Titleholder’s Name;

2. Where a broker under the Real Estate Brokerage Act transfers the real estate which he has directly acquired in violation of the same Act;

3. Where a real estate has been acquired under a minor’s title (excluding the acquisition by an inheritance or donation), and transferred thereafter;

4. Where a member of a household has transferred or acquired a real estate three times or more within a year retroactive from the date of transfer, and where the total sum of actual transaction values is 300 million won or more; and

5. Where the transfer margin based on the standard market price by transaction unit is one hundred million won or more.

(5) The term “cases prescribed by the Presidential Decree” in Article 96 (1) 7 of the Act means the case where one household possessing three or more houses transfers a house (including the land appurtenant thereto). In this case, the provisions of Article 155 (15) shall apply mutatis mutandis to the calculation of the number of houses in a multi-family house (limited to the case where residents select), and the provisions of Article 154 (9) shall apply mutatis mutandis to the method of determining a transfer house in case where two or more houses

Addenda (Presidential Decree No. 17751, October 1, 2002)

Article 2 (General Application) This Decree shall apply from the first transfer after this Decree enters into force.

Article 4 (Transitional Measures, etc. concerning Multi-Family Housing) (1) Where a sales contract for a house is concluded before this Decree enters into force, and transfers it by the date two months have elapsed from the enforcement date of this Decree, notwithstanding Article 156 (2), the previous provisions shall apply.

(2) Where one household which has three or more houses before the enforcement of this Decree concludes a sales contract and transfers it by the date on which two months have elapsed from the enforcement date of this Decree, the previous provisions, notwithstanding the amended provisions of Article 162-2, shall apply.

(iii)judgments

First, Article 89 (1) 3 of the Act, Article 154 (1) of the Enforcement Decree of the Act provides that "one house for one household" which is subject to non-taxation of capital gains tax means that the resident and his/her spouse have one house in Korea as of the date of transfer, which is composed of the family members living together with the family members living together with the same address or same place of residence, and its holding period is not less than three years. According to the above provision, the spouse of the resident shall be regarded as the same household even if he/she forms a separate household, and the meaning of one household shall be regarded as the same household unless otherwise provided for in the income tax law.

Therefore, the plaintiff's above assertion is without merit.

Second, Article 96(1)7 of the Act provides that the actual transaction value shall be the transfer value of assets in cases prescribed by the Presidential Decree in consideration of the type, holding period, number of assets held, size of transaction, method of transaction, etc. of the relevant assets. Article 162-2(5) of the Enforcement Decree of the Act provides that "cases prescribed by the Presidential Decree" refers to cases where one household which owns three or more houses transfers the house (including its appurtenant land). This provision provides that "where it is necessary to impose capital gains tax on the same real transaction value as those of Article 96(1)1 through 6-2 of the Act, cases where it is necessary to impose capital gains tax on the person who owns three or more houses can be efficiently stipulated in the delegation order." Article 96(1)1 through 6-2 of the Act, Article 162-2(2) of the Enforcement Decree of the Act provides that "the amount of real transaction value (Article 96(1)1 of the Act, Article 162-2(4) and 5 of the Enforcement Decree, Article 96(1)2) of the Act.6 of the Act.

Therefore, the plaintiff's above assertion is without merit.

Third, Article 162-2(5) of the Enforcement Decree was newly established on October 1, 2002. Article 2 of the Addenda of the Enforcement Decree provides that the first transfer of 3 or more houses prior to the enforcement of this Enforcement Decree shall apply to the claim. Article 4(2) of the Addenda of the Enforcement Decree provides that the previous provision shall apply to the case where one household which owns 3 or more houses prior to the enforcement of this Enforcement Decree concludes a sales contract and transfers it by the date two months have elapsed from the enforcement date of this Enforcement Decree, notwithstanding the provision of the Enforcement Decree, since the Enforcement Decree shall be applied from the transfer to the future and the grace period of 2 months has been granted, it does not go against the principle of retroactive legislative prohibition, the principle of excessive prohibition, and the principle of tax equality.

Therefore, the plaintiff's assertion on this part is without merit.

B. Determination on the conjunctive claim

(i)the master;

Since the defendant did not deliver the notice of taxation of this case to the plaintiff, the disposition of this case is null and void.

(ii)judgments

In full view of the purport of 1 to 3 statements and arguments in Eul evidence Nos. 7-1 and 7-3, the defendant sent the tax notice of this case to ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ apartment-dong, ○○○○○○○○○○○○○○○○○○○, a domicile of the plaintiff on behalf of the plaintiff, on December 14, 2004, by registered mail. On the 16th of the same month, the above tax notice was received by the security guard working in the above apartment management office. The above apartment security guard received registered mail and delivered it to the resident, and according to the above facts of recognition, it is reasonable to deem that ○○○○○ was implicitly delegated to the above security guard at least the right to receive the registered mail. Thus, the tax notice of this case was lawfully served on December 16, 204.

Therefore, the plaintiff's above assertion is without merit.

3. Conclusion

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