The requirements for non-taxation for one house for one household, which is first transferred for living together;

In cases where one household comes to own two houses by combining the households in order to support the living together, even the house which is first transferred within two years from the date of joining shall not be subject to the requirements for possession and the requirements for residing.

Article 155(1) of the Enforcement Decree of the Income Tax Act

1. The plaintiff's appeal is dismissed.

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

Purport of Claim

The judgment of the first instance shall be revoked. The imposition of capital gains tax of KRW 4,935,420 against the plaintiff on June 9, 2006 by the defendant shall be revoked.

1. Details of the disposition;

A. (1) On May 21, 1993, the Plaintiff acquired ○○○○ apartment, 00 00 00 dong and 000 dong (hereinafter “the apartment of this case”). The Plaintiff’s Dogdong acquired 000 Do 0000 dong and 0000 dong on February 2, 1999 (hereinafter “Dog apartment”). (2) The Plaintiff’s Dog-dong 00 00 dong and 0000 dong 000 dong and 0000 dong on March 27, 1993, ○○ apartment again moved into 00 dong and 000 dong 00 on May 26, 1997, but later moved into ○ apartment on November 19, 2006, ○○ apartment and 000 dong on March 29, 2099.

(3) The Plaintiff transferred the instant apartment to Ma○○, and completed the registration of ownership transfer on December 29, 2005.

B. On June 9, 2006, the Defendant issued the instant disposition to the Plaintiff, on the ground that the Plaintiff met the requirements for ownership for at least three years with respect to the transfer of the instant apartment, but failed to meet the requirements for residence for at least two years, to exclude the application of the non-taxation provisions on one house for one household, thereby imposing capital gains tax of KRW 4,935,420 for the year 205.

C. The plaintiff raised an objection against the defendant on June 16, 2006, but the application was dismissed on the 30th of the same month, and on September 6, 2006, the request for examination was rejected by the Commissioner of the National Tax Service on October 30 of the same year.

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, 4 through 8, Eul evidence 1 (including each number), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) The assertion on the unconstitutionality

With the amendment of the Enforcement Decree of the Income Tax Act on October 1, 2002, the Plaintiff already owned the apartment house of this case for not less than 3 years and for not less than 9 years at the time when the requirements of residence (not less than a year) were first stipulated in the scope of one house for one household upon the amendment of the Enforcement Decree of the Income Tax Act, and thus, the above amendment clause is unconstitutional in violation of the prohibition of retroactive legislation under Article 13 of the Constitution so that the Plaintiff may impose capital gains tax on the Plaintiff by infringing on the Plaintiff’s vested rights. The purpose of this amendment was to hold the apartment house of this case for the purpose of residence, and the Plaintiff did not have any speculative purpose at all. Although there was a variety of policy measures for preventing and controlling speculative act and recovering non-income from speculative act, the housing owners in a certain area including Seoul are uniformly regarded as the speculative investors and added the requirements of residence for not less than 1 year (the above amendment requires more than 2 years since the amendment of the Enforcement Decree of the Income Tax Act on November 20, 2003).

(2) The assertion on the same household

The Plaintiff’s purchase of the instant apartment shall be deemed to be a single household until February 2, 1999, and the Plaintiff and Gangnam ○○○○, a separate household consisting of the purchase of the instant apartment by the Plaintiff on or before the day before February 2, 1999. Thus, during that period, a lineal family consisting of the same household as the Plaintiff is living in the instant apartment, and after the Gangwon ○, a separate household was organized by the Plaintiff, the Plaintiff had his/her family residing in the Gangnam ○○ apartment located in the instant apartment instead of the Plaintiff’s residence in the instant apartment due to the school problems of the workplace and grandchildren of the Gangwon ○○, which is the Plaintiff, and thus, the instant disposition taken on the premise that the Gangwon ○○ is not a lineal family that constitutes one household.

(3) Claim as to household unity

The plaintiff's strong ○○ was in violation of Article 155 (4) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 19254, Dec. 31, 2005; hereinafter the same) and Article 3 (3) of the Addenda of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 19254, Dec. 31, 2005; hereinafter the same) for the transfer of apartment of this case within two years thereafter, the transfer income tax should be exempted. Thus, the disposition of this case without applying the above provision is unlawful.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(1) Determination on the assertion of unconstitutionality

Article 13 of the Constitution of the Republic of Korea only means that the relevant tax law cannot be applied to the completed facts prior to the effective date of the Act, and it does not restrict the application of new laws and regulations on the taxation requirements that occurred thereafter. In this case, even if the continued ownership of apartment of this case is recognized, the amended laws and regulations in the direction of strengthening the taxation requirements at the time of the completion of the taxation requirements shall not be deemed to go against the principle of non-payment of tax laws and regulations, and if a person who did not acquire real estate for speculative purposes by limiting the area with large demand as part of the real estate policy for the healthy development of the national economy, any person can meet the requirements of residence and provides various exceptions for reasonable reasons, and if the house is transferred by October 1, 2002 after the enforcement date of the Enforcement Decree of the Income Tax Act, regardless of the previous provisions, the above revised provisions of Article 3(1) of the Act concerning the right of equality cannot be deemed to be applied to the pertinent area (Article 3(2) of the Act).

Article 154 (1) of the former Enforcement Decree of the Income Tax Act provides that the meaning of "one household" in the "one house for one household which is exempt from capital gains tax" means a household in which a resident and his spouse together with the family members who live in the same address or same place of residence. Article 154 (6) of the same Act provides that "family members" refers to the lineal ascendants and descendants (including their spouses) and siblings of the resident and their spouse, and includes those who temporarily left the original domicile or temporary domicile for school attendance, medical treatment for diseases, work or business conditions. As seen above, the plaintiff and Gangnam ○○ is a separate household except from February 1, 1999 to February 22, 199, and the plaintiff and Gangnam ○○○ does not reside in the apartment house owned by them, and the plaintiff's disposition on the premise that the plaintiff and Gangnam ○○○ does not have any other reason to establish the same apartment unit as the plaintiff and the plaintiff's family members living in the same part for more than 5 years (including the period in which they resided).

Article 155 (4) of the former Enforcement Decree of the Income Tax Act provides that "where a person having one house and forming one household joins the households in order to care for a lineal ascendant possessing one house (5 years old in case of a woman) by living together, and one household comes to own two houses, the house which is first transferred within two years from the combining date shall be regarded as one house for one household, and the provisions of Article 154 (1) shall apply to the house which is first transferred within two years from the combining date." However, even in this case, since the requirements for possession and residence under Article 154 (1) are not satisfied with respect to the house which is first transferred, as long as the plaintiff did not meet the requirements for residence for the apartment of this case, the plaintiff's above assertion is without merit without further review."

Therefore, since the disposition of this case is lawful, the plaintiff's claim of this case shall be dismissed as it is without merit. The judgment of the court of first instance is just in conclusion, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.

public official law, order of law,

Income Tax Act (amended by Act No. 7837 of Dec. 31, 2005)

Article 89 (hereinafter referred to as “transfer income tax”) shall not 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”);

Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 19254 of Dec. 31, 2005)

Article 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 transfer date, and where the relevant house is held for not less than 3 years (in the case of a house located in the 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 relevant retention period): Provided, That where one household possesses one house in Korea as of the transfer date and falls under any of the following subparagraphs, its retention period and residing period shall not be restricted:

(Dismissal omitted)

(6) The term "family" in paragraph (1) means the lineal descendants and descendants (including their spouses) and brothers and sisters of the resident and his spouse, and includes those who temporarily left the original address or dwelling place for school attendance, medical treatment, situations of work or business.

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

(4) In case where a person having one house and forming one household comes to combine the households in order to jointly live and support the lineal ascendants (including his spouse’s lineal ascendants) of 60 or more years old having one house (in case of a woman, 55 or more years old), and consequently, one household comes to own two houses, the house which is first transferred within two years from the combining date shall be regarded as one house for one household, and be subject to the provisions of Article 154 (1).

Addenda No. 17751, Oct. 1, 2002>

Article 1 (Enforcement Date) This Decree shall enter into force on the date of its promulgation.

Article 2 (General Application) This Decree shall apply to the first transfer after the enforcement of this Decree.

Article 3 (Transitional Measures for One House for One Household) (1) Where the relevant house is transferred by the date on which one year has elapsed after this Decree enters into force, notwithstanding the amended provisions of Article 154 (1), the previous provisions shall apply.

(2) In case where one household possesses two houses under Article 155 (4) and (5) at the time this Decree enters into force, a house which is first transferred within two years from the date of joining for the amount of living together or the date of marriage (limited to the relevant house whose retention period is for three years or more) shall be regarded as one house for one household, and be subject to the previous provisions, notwithstanding the amended provisions of Article 154 (1).

Addenda No. 18127, Nov. 20, 2003

Article 1 (Enforcement Date) This Decree shall enter into force on January 1, 2004.

Article 2 (General Application) This Decree shall apply to the portion transferred after the enforcement of this Decree.

Article 3 (Transitional Measures for Two Houses for One Household) (1) In case where one household temporarily possesses two houses at the time of enforcement of this Decree, and where it transfers the previous house within one year from the date of acquiring another house under the provisions of Article 155 (1), notwithstanding the provisions of Article 154 (1), the previous provisions shall apply.

(2) Where one household possesses two houses under Article 155 (4) and (5) at the time this Decree enters into force, the house which is first transferred within two years from the date of joining or the date of marriage for the amount of living together, shall be considered as one house for one household, and be subject to the previous provisions, notwithstanding the amended provisions of Article 154 (1).