Seoul Administrative Court 2014Gudan51602 (Law No. 25, 2014)

2013west 3885 ( December 10, 2013)

The transfer of the instant additional house is null and void by false conspiracy.

Since the transfer of the instant additional house is invalid by a false conspiracy, the Plaintiff constitutes two houses for one household at the time of the transfer of the instant house, and the Defendant’s disposition premised thereon is legitimate.

Article 14 of the Framework Act on National Taxes

2014Nu65297 Revocation of Disposition of Imposing capital gains tax

Park DD

O Head of tax office

National Rotations

March 31, 2015

April 21, 2015

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance is revoked, and the transfer income tax reverted to the Plaintiff in June 5, 2013, which was reverted to the Plaintiff on June 5, 2013.

166,958,520 won shall be revoked.

1. Quotation of judgment of the first instance;

The court's explanation about the instant case is 2-C. The last part of the judgment.

Inasmuch as the reasoning of the judgment of the court of first instance is the same as that of the part concerning the reasoning of the judgment of the court of first instance, it shall be quoted in accordance with Article 8(2) of the Administrative Litigation Act and Article 420

The Plaintiff added the assertion that, in a case where a transferor is unable to choose the time of transfer, such as a case where a house is transferred through a voluntary auction procedure, it would infringe on an individual’s property right and the right to pursue happiness. The purport of recognizing preferential treatment, such as where one house per household does not impose income tax, is that the transfer of one house owned in Korea is the basis of citizen’s residential life. Thus, in certain cases, it can be deemed that the transfer of one house owned in Korea is not a temporary residence or transfer of one house for the purpose of acquiring capital gains tax or speculation, without imposing income tax on the transfer income (see Supreme Court Decision 92Nu12988, Jan. 193, 1993). Even in a case where two houses are held, it is difficult to readily conclude that the Plaintiff’s disposal of the house without any relation between the transfer time and the right to pursue happiness, and thus, it is nothing more than an infringement on the transferor’s property right at the time of voluntary auction, and thus, it cannot be said that the Plaintiff’s disposal of the house was an unlawful reason for imposition of capital gains tax.

2. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit, and the judgment of the court of first instance with the same conclusion is just, and the plaintiff's appeal is dismissed. It is so decided as per Disposition.