Whether capital gains tax is void automatically;

The transfer income tax does not fall under the invalidation of a year because it does not fall under the transfer of one house for one household because it owns two more houses at the time of transfer.

Article 89 (Non-Taxable Transfer Income)

Article 11 of the Administrative Litigation Act (Prior Issues)

The plaintiff's claim is dismissed.

Litigation costs shall be borne by the plaintiff.

1.Recognition

A. On September 10, 1995, the Plaintiff purchased an OO-gu OO-dong 101-1 ○ apartment No. 1 ○○ apartment (hereinafter “instant real estate”) and completed the registration of ownership transfer on November 7, 1995, but sold it to GOOO on May 22, 2003, and completed the registration of ownership transfer on June 30, 2003.

B. Meanwhile, the Plaintiff purchased an OO-gu O-dong No. 286 O-dong No. 6 of O-dong No. 286 O-dong No. 6 of O-dong No. 286 on September 14, 2002 and completed the registration of ownership transfer on October 15, 2002, purchased a house on the ground of O-dong No. 2 in Seoul O-dong No. 2002 on March 6, 2002 and completed the registration of ownership transfer on May 6, 2002. The Plaintiff owned each of the above real estate as it was at the time of selling the instant real estate to O-dong.

C. Since the Plaintiff sold the instant real estate, the head of ○○○ Tax Office under the Defendant’s control determined and notified the transfer income tax of KRW 63,714,730 to the Plaintiff after undergoing a tax investigation.

D. On May 25, 2005, the Defendant, upon the Plaintiff’s delinquency in payment of the above capital gains tax, seized 15 OO○ apartment Nos. 15, 15, 2005, which is the Plaintiff’s owner, and requested the Korea Asset Management Corporation to take a public sale on June 15, 2005. The Korea Asset Management Corporation, upon the sale of the above real estate to OO, confirmed the total amount of the sales price to be distributed on November 15, 2005 as KRW 131,160,00,000, and distributed KRW 7,348,330,00 to OO-gu Seoul Metropolitan Government, which is the seizure authority, and KRW 7,937,80,00,00 to the lessee Kim ○, the lessee, and KRW 29,83,80,00,00 to the Defendant (OO-gu, the seizure authority).

[Ground of recognition] Facts without dispute, Gap 2 to 5 evidence, Eul 1 to 10 evidence, the whole purport of pleading

2. The plaintiff's assertion and judgment

A. The plaintiff's assertion

The Plaintiff purchased the instant real estate at KRW 135,00,000 on September 10, 1995, and sold at KRW 350,000 on May 22, 2003. However, according to the laws and regulations at the time of the transfer of the instant real estate, the transfer income tax is imposed only when the purchase price is more than 50,000 or less than 5 years after the purchase price is more than 500,000,00. However, the Defendant is obliged to pay the amount stated in the purport of the claim to the Plaintiff, as unjust enrichment by imposing the transfer income tax on the transfer of the instant real estate that is not subject to the imposition of the transfer income tax and by having the Plaintiff dispose of the Plaintiff’s property by public sale.

B. Relevant statutes and determination

(1) Relevant statutes

○ Article 89 of the Income Tax Act (Non-taxable Transfer Income)

No income tax on capital gains (hereinafter referred to as “capital gains 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 a transfer of 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 land to which the building is fixed by the ratio as determined by region under the Presidential Decree;

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

○ Article 96 of the Income Tax Act (Transfer Price)

(1) The transfer value of assets referred to in Article 94 (1) 1 and 2 shall be the standard market value at the time of transfer of the assets concerned: Provided, That where the assets concerned fall under any of the following subparagraphs, it shall be the actual transaction value between the transferor and transferee (hereinafter referred to as “actual transaction value”):

7. Other cases prescribed by Presidential Decree in consideration of the types, holding period, number of assets held, scale of transactions, transaction methods, etc. of the relevant assets.

Article 162-2 of the Enforcement Decree of the Income Tax Act (Transfer Price)

(5) "Cases prescribed by Presidential Decree" in Article 96 (1) 7 of the Act means three or more houses.

One household possessing a house (including land annexed thereto) means the case where it transfers a house (including land annexed thereto).

(2) Determination

First of all, there is no legal basis to deem that capital gains tax will not be imposed if less than five years have elapsed since the purchase of real estate was less than five years. Furthermore, according to Article 89 subparagraph 3 of the Income Tax Act, income accruing from the transfer of one house by one household except for expensive houses which exceed the standard prescribed by the Presidential Decree is not subject to capital gains tax, but the fact that the plaintiff held two houses other than the real estate in this case at the time when the plaintiff sold the real estate to ○○○○, the transfer of the real estate in this case does not fall under the transfer of one house by one household. Therefore, the transfer of the real estate in this case does not fall under the transfer of one house by one household. Accordingly, the transfer income tax is imposed on the non-taxable transfer income on which the disposition imposing capital gains tax on the transfer of the real estate in

3. Conclusion

The plaintiff's claim of this case is dismissed as it is without merit.