Whether it constitutes three houses for one household to which the heavy tax rate is applied.

As of December 31, 2003, the Plaintiff does not fall under two houses owned by one household as of December 31, 2003, and those falling under three or more houses owned by one household as of December 31, 2003, and thus is not subject to the transitional provisions.

Article 104 (Tax Rate of Transfer Income Tax)

1. The plaintiff's appeal is dismissed.

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

1. Details of the disposition;

Facts without any dispute over recognition, Gap evidence 1, 2, 3-1, 2, Eul evidence 1-1, 2, 2-1 through 3-3, and the purport of the whole pleadings.

가. 원고는 대구 ○구 ○○동 ○○○-○ ○○아파트 ○동 ○○○호(이하 '이 사건 제1아파트'라고 한다.)와 서울 ◇◇구 ◇◇동 ◇◇◇ ◇◇아파트 ◇동 ◇◇◇호(이하 '이 사건 제2아파트'라고 한다.)를 소유하고 있으면서 2002. 12. 9. 서울 □□구 □□동 □□□-□□ □□□□ □□□동 □□□□호(이하 '이 사건 제3아파트'라고 한다.)의 분양권을 취득하여 2004. 2. 6. 나머지 잔금을 지급하고 같은 해 4. 6. 소유권이전등기를 마쳤다.

B. On April 19, 2004, the Plaintiff transferred the instant second apartment on June 30, 2004, and requested the Defendant to reduce the capital gains tax rate of KRW 60,254,604 based on Article 104(1)2-3 of the former Income Tax Act (amended by Act No. 7289, Dec. 31, 2004) by 60% for three houses for one household under Article 104(1)2-3 of the former Income Tax Act (amended by Act No. 7289, Dec. 31, 2004) on the ground that there was an error in applying the capital gains tax rate on September 6, 2004.

C. On November 8, 2004, the Defendant rendered the instant disposition rejecting the Plaintiff’s claim for reduction of the amount on the ground that the remaining liquidation date of the 3 apartment of this case on February 6, 2004 is not considered as the “person who has three or more houses or more for one household at the time of enforcement of the Act” under Article 16 of the Addenda of the Income Tax Act.

D. On December 30, 2004, the Plaintiff dissatisfied with the instant disposition, and filed a request for adjudgment with the National Tax Tribunal, but the Director of the National Tax Tribunal dismissed the Plaintiff’s request for adjudgment on October 13, 2005.

2. Whether the instant disposition is lawful

A. The parties' assertion

As to the defendant's assertion that the disposition of this case is lawful on the grounds of the above disposition and the relevant statutes, the plaintiff asserts that the disposition of this case is unlawful on the following grounds.

(1) It is clear that Article 98 of the Income Tax Act and Article 162 (1) of the Enforcement Decree of the same Act apply only to the calculation of gains on transfer of assets under the legal language. Thus, whether a person is a third house owner of one household under Article 16 of the Addenda of the Income Tax Act shall be determined on the basis of whether the assets, not the balance settlement date, have been actually transferred for payment. Since the plaintiff paid half of the down payment and intermediate payment for the third apartment in this case and actually resided in the above apartment from October 31, 2003, the plaintiff is a person who actually moves into the above apartment from October 31, 2003, and therefore, the plaintiff is a person who falls under three houses or more for one household at the

(2) From October 31, 2003, the plaintiff used and profit-making from the third apartment of this case. On December 29 of the same year, the date of the remainder payment agreement, 2007, the plaintiff concluded a quasi-loan contract with ○ Construction Co., Ltd. for the remainder of 218,819,000 won which is unpaid for the apartment of this case and settled the remainder. Thus, the plaintiff is the "person who already fell under three or more houses for one household at the time of enforcement of the Act" under Article 16 of the Addenda of the Income Tax Act as of December 29, 2003.

(3) Even though Article 16 of the Addenda of the Income Tax Act provides for transitional provisions to protect the trust of owners of three or more existing one household due to the amendment of the Income Tax Act, there is no transitional provisions for those who already owned two houses as of January 1, 2004, which was the enforcement date of the Income Tax Act as amended by the Plaintiff, and who are obviously expected to possess three houses for one household by paying more than half of the down payment, intermediate payment, and balance for the remaining one house, and who are obviously expected to have three houses for one household, it is unconstitutional that it discriminates without reasonable grounds, thereby infringing the right of equality under Article 11 of the Constitution or infringing the property right under Article 23 of the Constitution

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

(1) As to the plaintiff's first argument

(A) Article 98 of the Income Tax Act provides that "the time of acquisition and transfer of assets shall be determined by Presidential Decree in calculating gains from transfer of assets", and Article 162 (1) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 18705, Feb. 19, 2005) provides that "the time of acquisition and transfer under Article 98 of the Act shall be the date of liquidation of the price of the assets except for the following cases", and it does not include the time of liquidation of the price of the assets in each subparagraph separately. The above provision provides that "The time of acquisition and transfer of assets, which are various standards within the system of the income tax law, shall be determined by Presidential Decree in order to uniformly grasp the taxpayer's acquisition and transfer of assets in order to interpret and apply the relevant provisions without inconsistency, and that it shall be interpreted that the remaining time of acquisition and transfer of assets shall be limited to the time of taxation without taxation (see Supreme Court Decision 2002Du68195, Apr. 12, 2002).

(B) Comprehensively taking account of the overall purport of the arguments in the statement No. 3 and No. 4, the Plaintiff agreed to pay the balance of KRW 534,819,000 to ○○ Construction Co., Ltd. on December 29, 2003. However, after paying KRW 316,00,000 as part of the balance on the 22th of the same month, the Plaintiff paid KRW 312,00,000 including overdue interest due to the Plaintiff’s circumstances, and paid KRW 95,00,000 on January 2, 2004 including overdue interest, and KRW 95,00,000 on June 2, 200 of the same month, and KRW 2,271,176 on February 6, 2004. Accordingly, the Plaintiff’s assertion that the remaining liquidation date for the 3 apartment of this case was effective on February 6, 2004 is clear and reasonable.

(2) As to the second argument by the Plaintiff

First, with respect to whether the Plaintiff and ○ Construction Co., Ltd. entered into a quasi-loan agreement with the aim of a loan for consumption, the remainder of KRW 218,819,00 on December 29, 2003, which is the remainder of KRW 218,819,00, which is the date of the remainder agreement, as well as KRW 3,4,7,5-1, and 5-2, respectively, are insufficient to recognize them. There is no evidence to acknowledge that the Plaintiff entered into a quasi-loan agreement. Rather, as seen earlier, the Plaintiff did not pay the remainder of KRW 218,819,00 on December 29, 200, including overdue interest of KRW 212,00 on January 2, 2004, and KRW 95,000,000 on June 95, 200 on the same month, and KRW 6.2,271,76 on February 2, 2004.

(3) As to the plaintiff's third assertion

(A) The principle of tax equality or tax equality is a principle that the principle of equality under Article 11(1) of the Constitution is realized in the field of tax law, and the imposition and collection of taxes must be fair and equal commensurate with the taxpayer’s ability and shall not be granted disadvantageous discrimination or preferential treatment to a specific taxpayer without reasonable grounds. However, in cases where there are reasonable grounds, the principle of taxation based on the taxpayer’s ability should not be absolutely carried out without exception, and where there are reasonable grounds, the discrimination among taxpayers shall be exceptionally permitted. This is because the legislative body recognizes a broad freedom of formation as to how to determine the contents of tax law, and today’s tax legislations may consider various perspectives to achieve the national economy, financial policy, and social policy purpose other than the purpose of securing the financial revenue through the imposition of tax (see, e.g., Constitutional Court Order 2002HunBa43, Oct. 31, 2002).

(B) In the case of this case, reasonable grounds can be acknowledged to the effect that the Plaintiff, as the owner of two houses for one household, did not have any exception provision to those who concluded a sales contract for other houses before December 31, 2003, and there are no circumstances to recognize this as remarkably unreasonable and unfair measures or discriminatory taxation. Thus, Article 16 of the Addenda of the Income Tax Act cannot be said to violate the right of equality or the principle of equality under the Constitution or to infringe on property rights, and therefore, the Plaintiff’s third assertion is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is justified as it is so decided, and it is so decided as per Disposition by the plaintiff.

Related Acts and subordinate statutes

1. Income tax;

(1) For the purpose of Article 4 (1) 3 and this Chapter, the term "transfer" means that any assets are actually transferred for price due to sale, exchange, investment in kind in a corporation, etc., regardless of any registration or enrollment as to such assets. In such cases, where a donee takes over any obligation of a donor of an onerous donation (excluding the cases falling under the main sentence of Article 47 (3) of the Inheritance Tax and Gift Tax Act), the portion equivalent to the amount of such obligation in the donation amount shall be considered as

2. The former Income Tax Act (amended by Act No. 7006 of Dec. 30, 2003, and amended by Act No. 7289 of Dec. 31, 2004)

(1) The amount of the transfer income tax of a resident shall be the amount (hereinafter referred to as the “calculated amount of transfer income tax”) calculated by applying the tax rates falling under any of the following subparagraphs to the tax base of transfer income in the current year. In this case, when one asset falls under two or more tax rates among those as prescribed in the following subparagraphs, the highest one of them shall apply:

1. Assets under Article 94 (1) 1, 2 and 4: Tax rate under Article 55 (1);

2-3. House falling under one of three houses or more held by one household as prescribed by the Presidential Decree (including land annexed thereto; hereafter in this Article the same shall apply): 60/100 of the tax base of transfer income;

3. Addenda of the Income Tax Act (amended by Act No. 7006, Dec. 30, 2003).

Article 1 (Enforcement Date) This Act shall enter into force on January 1, 2004: Provided, That the amended provisions of Article 34 (2) 3-2 and 6 shall enter into force on the date of its promulgation, and the amended provisions of Article 99 (1) 1 (c) shall enter into force on January 1, 2005.

Where a real estate sales businessman or a person falling under three or more houses for one household transfers a house acquired before this Act enters into force (including land annexed thereto) on or before December 31, 2004, on or before the enforcement of this Act, the amended provisions of Articles 64, 95 and 104 (1) 2-3 shall not apply: Provided, That the same shall not apply where the relevant real estate sales businessman or a person falling under three or more houses for one household newly acquires another house on or after January 1, 2004.

4. The former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 18705 of Feb. 19, 2005)

Article 162 (Time of Transfer or Acquisition) (1) The time of transfer and that of transfer under Article 98 of the Act shall be the date of liquidation, except in the following cases:

1. Where the date of the settlement of price is not clear, the date of registration, receipt of registration, or transfer date entered in the register, registry, list, etc.;

2. The last day of the date of receipt of registration entered in the register, register, list, etc., in cases where the transfer of ownership (including the registration and the opening of names) has been made before paying the price;