2. The costs of lawsuit are assessed against the plaintiffs.

Cheong-gu Office

The defendant's refusal to refund capital gains tax amounting to KRW 10,927,662 against the plaintiffs on April 24, 2007 is revoked (it appears that KRW 10,972,662 stated in the complaint's claim is erroneous).

The following facts may be acknowledged in full view of the purport of the entire pleadings in each entry of Gap 2, 3, and Eul 1-1 through Eul 6-2, or there is no dispute between the parties, or in full view of the purport of the whole pleadings:

A. On January 1, 1990, the Plaintiffs acquired ownership of the O-O-O O-O O-O-O O-O-O-O O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O

B. The plaintiffs were members of the OO-public apartment reconstruction association (hereinafter "the reconstruction association of this case") which was promoting a reconstruction project for O-public apartment including the reconstruction apartment of this case. On January 27, 2003, the plaintiffs transferred the registration of ownership transfer for the reconstruction apartment of this case due to the trust to the reconstruction association of this case.

C. On June 27, 2003, the plaintiffs acquired the ownership of the OOO-OO apartment O-OO apartment OO-O apartment O-O apartment O-O apartment O-O apartment hereinafter "the apartment of this case").

D. On November 9, 2003, the reconstruction association of this case obtained the approval of the management and disposal plan from the competent Gu office, and the plaintiffs were selected as residents of OOO apartment units OOOOOO units that will be newly constructed due to reconstruction.

E. On December 15, 2003, the plaintiffs renounced the contract for the sale of OO apartment units between the reconstruction association of this case and the rebuilding association of this case, and, if the contract for the sale of OO apartment units was made through the general sale, the plaintiffs drafted a termination note of the contract to receive the settlement money in cash, and the reconstruction association of this case has withdrawn on the same day.

F. Around December 2006, the Plaintiffs received liquidation money from the reconstruction association of this case. Around February 2007, the Plaintiffs voluntarily reported KRW 10,927,662 on the premise that the transfer of the reconstruction apartment of this case constitutes two houses for one household.

G. The plaintiffs filed a request for correction of tax base and tax amount to the defendant on the ground that their transfer date of the registration of transfer of ownership of the reconstruction apartment in this case to the reconstruction association of this case is January 27, 2003, and that the date of withdrawal from the reconstruction association of this case is December 15, 2003. Since the transfer date of the reconstruction apartment in this case should be January 27, 2003 or December 15, 2003, the transfer date of the reconstruction apartment in this case shall be deemed to be December 27, 2003, the transfer date of the reconstruction apartment in this case constitutes one house for one household, but the defendant issued a disposition rejecting a request for correction on April 24, 207 (hereinafter "disposition in this case").

H. The plaintiffs requested on July 16, 2007 to the National Tax Tribunal, but the National Tax Tribunal rendered a decision to dismiss the plaintiffs' request on December 14, 2007.

2. Whether the instant disposition is lawful

A. The parties' assertion

(1) The plaintiffs' assertion

Article 162 (1) 2 of the Enforcement Decree of the Income Tax Act provides that the date of receipt of registration recorded in the register shall be the date of transfer of assets in cases where the registration of transfer of ownership was made before the settlement of the price of the relevant assets. The plaintiffs agreed to receive the appraised value of the reconstruction apartment under the management and disposal plan after withdrawing from the reconstruction association of this case on January 27, 2003. Thus, the time of transfer of the reconstruction apartment of this case shall be deemed to be January 27, 2003 after the completion of the registration of transfer of ownership to the reconstruction association of this case. At that time, only the reconstruction apartment of this case is owned by only one household, and the plaintiffs' withdrawal from the reconstruction association of this case and confirmed ownership of the reconstruction apartment of this case to the reconstruction association of this case on December 15, 2003, the reconstruction apartment of this case shall also be subject to non-taxation requirement since they acquired the previous apartment of this case for the purpose of transfer of ownership within 2 years.

(2) The defendant's assertion

The basic date of conversion of the previous real estate into the right to move into the right to move into the reconstruction project is the administrative disposition plan. However, in case where the plaintiffs waive the right to move into the reconstruction association due to the special circumstances of the plaintiffs, who are the members after the date of the administrative disposition plan which became final and conclusive, the unit purchase of the newly constructed apartment due to reconstruction, such as the plaintiffs, is the transfer of the right to move into the reconstruction association. Since the time of transferring the right to move into the reconstruction project is around December 2006, the time of transferring the right to move into the reconstruction association is reasonable

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(1) A reconstruction association's member under the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 61916 of May 29, 2003; hereinafter "former Do Government Act") shall have the right to purchase the housing and its appurtenant and welfare facilities to be newly built by providing the existing housing or site to the association and to be acquired in accordance with the project plan (the status of being selected as a tenant) until the ownership of the housing, etc. is acquired. In this case, the time of acquisition of the selected status as an occupant falls under the right to acquire the real estate under Article 94 (1) 2 (a) of the former Income Tax Act (amended by Act No. 7873 of March 3, 2006) until the ownership of the housing, etc. is acquired.

Meanwhile, in calculating gains on transfer of assets, Article 98 of the former Income Tax Act provides that the time of acquisition and time of transfer shall be determined by the Presidential Decree. Article 162 (1) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 19890, Feb. 28, 2007; hereinafter the same shall apply) provides that the time of acquisition and time of transfer under Article 98 of the former Income Tax Act shall be the date of liquidation of the price of the assets concerned in principle, but where the date of liquidation is unclear, the date of registration, receipt, or transfer recorded in the register, register, register, or list, etc. shall be deemed the date of transfer (Article 1) and where a registration of transfer is made before the settlement of price, the date of receipt of registration entered in the register, register, or list, etc. shall be deemed the date of transfer (Article 2).

(2) First, as in the instant case, in a case where an association member gives up the right to move in with the reconstruction association and receives the liquidation money for the previous house after a management and disposal plan is approved in the reconstruction project and the new apartment unit newly constructed due to the reconstruction becomes final and conclusive after the housing unit was built in the future, it shall be deemed that the association member transferred the right to move in to the reconstruction association, and the time when the transfer was made.

The management and disposal plan is to be changed to the right to move into the house newly constructed by the reconstruction association members upon approval of the management and disposal plan. The management and disposal plan includes the design for parcelling-out, estimated amount of the site or structure scheduled for parcelling-out by objects of parcelling-out, details of the previous land or structure by objects of parcelling-out, the estimated amount of the maintenance project cost, the amount of the partnership's burden and the timing for the association members to move into the housing accordingly (Article 48 (1) of the former Do Act). If the approval of the management and disposal plan is announced, the owner of the previous land or structure can not use or profit from the previous land or structure until the date of the transfer announcement (Article 49 (6) of the former Do government Act). However, the old Do government law provides for liquidation procedures as to the person who did not move into the housing before the approval of the management and disposal plan, but after the cancellation or cancellation of the approval of the plan, it cannot be viewed that the association members did not withdraw from the reconstruction association after the transfer of the right to move out the housing.

Therefore, the plaintiffs can be deemed to have transferred the right to move into the reconstruction association of this case, and the time of transfer shall be December 2006, which received the payment from the reconstruction association of this case.

(3) Whether a household constitutes one house non-taxation requirement

According to Article 89 (1) 3 of the former Income Tax Act and Articles 154 (1), 155 (1) and 155 (1) and 17 of the former Enforcement Decree of the Income Tax Act, where a member of a reconstruction association has no other house at the time of transfer of the right to move in, and the period of possession of the existing house as of the date of authorization of the management and disposal plan has more than 3 years, income from such transfer shall be exempted from capital gains tax under the conditions as prescribed by Article 154 (1) 1 of the former Enforcement Decree of the Income Tax Act. In addition, even where a member owns other house than the right to move in, even if he owns other house, he shall transfer the right to move in within 1 year from the date of acquisition of other house and the period of possession of the existing house as of the date of authorization of the management and disposal plan, if he satisfies non-taxation requirements as prescribed by Article 154 (1) 2 of the Enforcement Decree of the Income Tax Act, income from such transfer of apartment house shall not be exempted from capital gains tax on the date of the apartment house after 20 years of 10.

(4) The theory of lawsuit

Therefore, the plaintiffs' assertion that the transfer price of the reconstruction apartment of this case was on January 27, 2003, when the transfer price of the reconstruction apartment of this case completed the registration of transfer to the reconstruction association of this case, or on December 15, 2003, when the plaintiffs withdrawn from the reconstruction association of this case, that the ownership of the reconstruction apartment of this case was finally reverted to the reconstruction association of this case, is without merit, and it is legitimate that the plaintiffs voluntarily reported and paid the total amount of 10,927,662 won on the premise that the transfer price of the reconstruction apartment of this case (transfer of right to use) constitutes two houses of one household, and thus, the disposition of this case refusing to correct the plaintiffs

3. Conclusion

Therefore, all of the plaintiffs' claims are dismissed as it is without merit. It is so decided as per Disposition.

Related statutes

(1) Income Tax Act (amended by Act No. 7873 of March 3, 2006)

Article 89 (Non-Taxable Transfer Income)

(1) No capital gains tax (hereinafter referred to as "capital gains tax") shall be levied on the following incomes:

3. Income accruing from 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 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”); and

(2) Notwithstanding the provisions of paragraph (1), the provisions of subparagraph 3 of the same paragraph shall not apply to cases where one household prescribed by the Presidential Decree holds a house (including the land annexed to a house; hereafter the same shall apply in this Article) and the status of being selected as an occupant (limited to the status acquired (including that acquired from its members) as a member of a maintenance and improvement project association implementing a housing reconstruction project or a housing redevelopment project under the same Act, and including the land annexed thereto; hereinafter referred to as "association member's relocation right") and transfers the relevant house: Provided, That the same shall not apply to cases where it acquires a house to reside during the implementation period of a housing reconstruction project or housing redevelopment project under the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents or for Residents, or

Article 94 (Scope of Transfer Income)

(1) Transfer income shall be the following incomes generated in the relevant year:

2. Income accruing from transfer of any right to the real estate falling under any of the following items:

(a) Right to acquire real estate (including the right to acquire a building upon completion of its construction and its appurtenant land);

Article 98 (Time of Transfer or Acquisition)

In calculating gains on transfer of assets, the time of acquisition and transfer shall be determined by Presidential Decree.

(1) Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 19890 of Feb. 28, 2007)

Article 154 (Scope of One House for One Household)

(1) The term “one house for one household 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 members living together with the same address or same residence (hereinafter referred to as “one household”) in Korea as of the date of transfer, and where the relevant house is held for not less than three years (in the case of a house located in a district designated and publicly notified as a planned area for housing site development under Article 3 of the Housing Site Development Promotion Act, the relevant house shall be held for not less than three years and the period of residence is not less than two years during the period of possession): Provided, That where one household has one house in Korea as of the date of transfer and falls under any of the following subparagraphs, its retention period and period of residence shall not be restricted:

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

(1) Where one household which has one house in Korea comes to possess two houses temporarily by acquiring another house (including the case where it acquires by constructing by itself) before transferring the relevant house, if it transfers the previous house within one year (including the case where unable to transfer within one year, and which falls under the causes as determined by the Ordinance of the Ministry of Finance and Economy) from the date of acquiring another house, it shall be regarded as one house for one household, and the provisions of Article 154 (1) shall be applicable. In this case, where a part of previous house and appurtenant lands is purchased by consultation or expropriated under Article 154 (1) 2 (a), and where the relevant remaining house and appurtenant lands are transferred within two years from the date of such transfer or expropriation, the transfer of relevant remaining house and appurtenant lands shall be deemed to be included in the transfer or expropriation of the previous house and appurtenant lands.

17. Where one household (limited to the household possessing the existing house falling under Article 154 (1) as of the date of authorization of management and disposal plans under Article 48 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (where the existing house is removed before the date of authorization, the date of removal of the existing house) possessing one association member's relocation right under the main sentence of Article 89 (2) of the Act (hereinafter referred to as the "association member's relocation right") transfers the relevant association member's relocation right, it shall be deemed as one house for one household under Article 154 (1), notwithstanding the provisions of Article 94 (1) 2 (a) of the Act, in cases falling under any of the following subparagraphs: Provided, That in cases of subparagraph 2, it shall be limited to the case where the relevant association member'

1. Where no other house exists as of the transfer date;

2. Where one house is possessed in addition to one association member's relocation right as of the transfer date;

Article 162 (Time of Transfer or Acquisition)

(1) The time of acquisition and transfer under Article 98 of the Act shall be the date of liquidation of the price of relevant assets (if the transferee agrees to bear the capital gains tax and additional tax of capital gains tax on the transfer of relevant assets, excluding such capital gains tax and additional tax of capital gains tax) 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. Date of receipt of the registration entered in the register, register, list, etc. where the transfer of ownership (including the registration and the opening of the name) has been made before the price is settled;

(1) The Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 61916 of May 29, 2003)

Article 48 (Authorization, etc. for Management and Disposal Plans)

(1) A project implementer (excluding a residential environment improvement project) shall, when the period for application for parcelling-out under Article 46 expires, establish a management and disposal plan including the following matters on the basis of the current status of application for parcelling-out under Article 46 before demolishing an existing building under this Act, and obtain authorization therefor from the head of a Si/Gun, and the same shall also apply when he/she intends to modify, suspend, or abolish a management and disposal plan: Provided, That

1. Design for sale;

2. Address and name of a purchaser;

3. Estimated amounts of the sites or structures scheduled for parcelling-out by person subject to parcelling-out;

4. Price based on the details of the previous land or buildings by person subject to parcelling-out and the date of public announcement of authorization for project implementation;

5. Estimated amounts of the rearrangement project costs, and the sharing size and sharing period for the partnership members following thereto;

6. Details of rights other than ownership of the previous land or buildings subject to parcelling-out.

7. Other matters prescribed by Presidential Decree with respect to the rights, etc. relating to rearrangement projects.

Article 49 (Perusal of Management and Disposal Plans and Its Authorization Procedures, etc.)

(3) When the head of a Si/Gun approves a management and disposal plan under paragraph (2), he/she shall publicly announce the details thereof in the official bulletin of the relevant

(6) When a public announcement is made pursuant to the provisions of paragraph (3), any right holder, such as the owner, superficies, leaseer, etc. of the previous land or building shall not use or benefit from the previous land or building until the date of public announcement of relocation under Article 54: Provided, That the same shall not apply where he/she has obtained the consent of the