신축주택의 양도소득세 감면 특례규정의 체계적 해석에 관한 연구

신축주택 취득자의 양도소득세 감면 특례규정에 대한 법적 해석을 검토했다.

With regard to the interpretation of Article 99-3, paragraph (1) of the Old Restriction of Special Taxation Act on transfer income tax exemption of new-home acquirer, the Korean court ruled that ① only the transfer income tax generated within 5 years from the date of acquisition of new housing could be reduced, ② the total reduction of transfer income tax given by tax authorities to some taxpayers was not a non-taxation practice(Seoul High Court 2011Nu45193, December 21, 2012).

In the judicial precedent, first, concerning the transfer of a newly constructed house within or after five years of the date of acquisition, in order to review whether the total amount of capital gains occurring up to the day before the date of acquiring the newly constructed house is reduced, the ‘principle of strict interpretation’, the principle of clarity of tax requisition, the correlation to tax free regulations regarding 1 house constructed by 1 household, and other legislative backgrounds and systems of the special clause of this case will be carefully reviewed.

On the other hand, there have been instances where the taxing authority has reduced taxes concerning capital gains prior to the date of acquisition of the newly constructed house for certain taxpayers, and the fact that the same case of the judicial precedent was a case where the difference was refunded after a claim for reassessment by stating an application of the special clause but was then again ruled for taxation brings into question the reason for justification and the violation of the ‘prohibition of retroactive taxation principle’ or the ‘confidence protection principle’ regarding whether the ‘tax-free custom’ and ‘public expression of the taxing authority on tax reduction’ are established.

In particular, the 2012Nu8931 sentence by the Seoul High Court judged that the plaintiff who is a member of the housing reconstruction association violated the taxation which calculated the amount of capital gains reduced by applying the formula of clause 1, article 40 of the same enforcement ordinance in a case which applied the former part of the clause 1 of the special clause of this case by transferring a newly constructed house within 5 years, which was acquired according to the management disposal plan after supplying the old house to the same association(Seoul High Court 2012Nu8931, May 31, 2013).

Therefore this dissertation unfolds a critical view regarding the ‘principle of strict interpretation’, the principle of clarity of tax requisition, the retroactive taxation principle, the confidence protection principle, the justification reasons on additional tax and the tax balance of the application objects.