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

Cheong-gu Office

The same shall apply to the order.

A. On April 28, 2001, 201, ○○○○ apartment reconstruction association (hereinafter “the instant association”) obtained approval for a project plan for rebuilding of ○○○ apartment, ○○○○ apartment, 670, and constructed 7 ○○○○○○○ apartment on the said site on the said site, and obtained approval for the use on January 28, 2005. During that process, ○○○ apartment, which remains after supplying the remaining 254 households, among the above ○○○ apartment, supplied to the members, was paid a down payment by concluding a general sales contract from April 25, 2002 to April 27, 2002.

B. On October 31, 2001, the Plaintiff acquired the status as a member of the instant association, and subsequently voluntarily paid KRW 241,727,260 as capital gains tax on the transfer of the instant apartment on March 2, 2005, after having sold the said apartment from the instant association ○○○○○○○○○○ 105 Dong 2202 (hereinafter “instant apartment”). The Plaintiff completed the registration of preservation of ownership on March 2, 2005. On May 10, 2005, the Plaintiff transferred the instant apartment to ○○○○ and ○○○○○○○○○○○○○○, a 1.68 billion won, and paid the Defendant KRW 241,727,260 as capital gains tax on the transfer of the instant apartment.

C. On December 27, 2005, the Plaintiff filed a request for correction of the amount of capital gains tax paid as above with the Defendant by asserting that the apartment of this case constitutes reduction and exemption of capital gains tax under Article 99-3 (1) 1 of the former Restriction of Special Taxation Act (amended by Act No. 6762 of Dec. 11, 2002; hereinafter referred to as the “former Act”).

D. As to this, the Defendant rendered the instant disposition rejecting the Plaintiff’s request for correction on February 17, 2006 on the ground that the approval for use of the instant apartment was not made within the new house acquisition period (from May 23, 2001 to June 30, 2003) under the premise that the instant apartment falls under the “newly-built house constructed by himself” under Article 99-3(1)2 of the Restriction of Special Taxation Act.

[Ground of recognition] Unsatisfy, A6, 7

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The association of this case constitutes an acquirer of newly-built house subject to reduction or exemption of capital gains tax pursuant to Article 99-3 (1) 1 of the former Act and Article 99-3 (3) 2 of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 17458 of December 31, 2001; hereinafter referred to as the "former Enforcement Decree"), on the premise that the apartment of this case constitutes a newly-built house subject to reduction or exemption of capital gains tax pursuant to Article 99-3 (1) 2 of the Restriction of Special Taxation Act, under the premise that the apartment of this case constitutes a newly-built house under Article 99-3 (1) 2 of the Restriction of Special Taxation Act after its approval for use was newly established and failed to meet the requirements for reduction or exemption under the above provision.

(b) Related statutes;

In the Restriction of Special Taxation Act (amended by Act No. 6762 of Dec. 11, 2002)

○ Special taxation for transfer income tax on the acquisitor of a newly-built house under Article 99-3

(1) With respect to the income accruing from transfer of a newly-built house (including land attached to a house, the total floor area of which is less than twice the total floor area of the relevant building; hereafter the same shall apply in this Article) falling under any of the following subparagraphs by a resident (excluding a housing construction business operator) within five years from the date of acquisition, the tax amount equivalent to 100/100 of the transfer income tax shall be reduced or exempted, and where the relevant newly-built house is transferred after five years from the date of acquisition thereof, the transfer income accruing for five years from the date of acquisition thereof shall be subtracted from the income amount subject to taxation of the transfer income tax: Provided, That this shall not apply

1. In cases of newly-built house acquired from a housing developer:

A newly-built house acquired by a person who first concludes a sales contract and pays a down payment with a housing constructor during the period from May 23, 2001 to June 30, 2003 (hereafter in this Article, referred to as the “newly-built house acquisition period”): Provided, That a house that has been occupied as of the date of a sales contract under the Housing Construction Promotion Act or an redevelopment association under the Urban Redevelopment Act, and that has a fact falling under the causes prescribed by the Presidential Decree, shall be excluded from

2. Where a newly-built house (including a house acquired by a housing association under the Housing Construction Promotion Act or a member as prescribed by the Presidential Decree through an redevelopment association under the Urban Redevelopment Act);

A newly-built house that has obtained approval or inspection for use (including approval for temporary use) within the newly-built house acquisition period

(1) Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 17458 of Dec. 31, 2001)

○ Special taxation for transfer income tax on the acquisitor of a newly-built house under Article 99-3

(1) Deleted.

(3) The term "housing prescribed by Presidential Decree" in Article 99-3 (1) 1 of the Act means the housing falling under any of the following subparagraphs:

1. A house remaining after a housing association under the Housing Construction Promotion Act or an redevelopment cooperative under the Urban Redevelopment Act (hereafter in this Article, referred to as the “housing association, etc.”) supplies to its members (hereafter in this Article, referred to as the “ residual house”), which is acquired by a person who concludes a direct sales contract and pays the down payment with a housing association, etc. within the newly-built house acquisition period under Article 99-3 (1) 1 of the Act (hereafter in

2. A house which is acquired by a member of a housing association, etc. and for which an approval for use or inspection for use has been obtained after the newly-built house acquisition period: Provided, That this shall be limited to the case where a housing association, etc. has received a down payment by directly concluding a sales contract for the remaining house (based on the first sales contract

(1) Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 17458, Dec. 31, 2001; Presidential Decree No. 17829, Dec. 30, 2002)

○ Special taxation for transfer income tax on the acquisitor of a newly-built house under Article 99-3

(1) Deleted.

(3) The term "housing prescribed by Presidential Decree" in Article 99-3 (1) 1 of the Act means the housing falling under any of the following subparagraphs:

1. A house remaining after a housing association under the Housing Construction Promotion Act or an redevelopment cooperative under the Urban Redevelopment Act (hereafter in this Article, referred to as the “housing association, etc.”) supplies to its members (hereafter in this Article, referred to as the “ residual house”), which is acquired by a person who concludes a sales contract directly with a housing association, etc. and pays the down payment within the newly-built house acquisition period under Article 99-3 (1) 1 of the Act (hereafter in

2. A house acquired by a member (referring to a member as of the date of authorization of a management and disposal plan under Article 34 of the Urban Redevelopment Act or the date of approval of a business plan under Article 33 of the Housing Construction Promotion Act; hereafter in this subparagraph, the same shall apply) from a housing association, etc. and for which an approval for use or inspection for use has been obtained after the expiration of the new house acquisition period: Provided, That it shall be limited to cases where a housing association, etc. has directly concluded a sales contract with a person other than a member

Sub-laws No. 17458, Dec. 31, 2001

○ Article 1 (Enforcement Date) This Decree shall enter into force on January 1, 2002.

The amended provisions of Article 99-3 (3) 2 and (5) of the Act on the Scope of Members for whom Transfer Income Tax is reduced or exempted shall apply to the first time after this Decree enters into force.

【Special Taxation Act (amended by Act No. 6762 of Dec. 11, 2002)

○ Special taxation for transfer income tax on the acquisitor of a newly-built house under Article 99-3

(1) With respect to the income accruing from the transfer of a newly-built house (including land attached to a house, which is less than twice the total floor area of the relevant building; hereafter in this Article the same shall apply) falling under any of the following subparagraphs located in an area other than the area prescribed by the Presidential Decree, in which a resident (excluding a housing construction business operator) has increased or is likely to increase rapidly in real estate prices in consideration of a national consumer price inflation rate and a rising rate of national house trade prices, within five years from the date of its acquisition, the tax amount equivalent to 100/100 of transfer income tax shall be reduced or exempted, and where the relevant newly-built house is transferred after five years from its acquisition date, the transfer income accruing for five years from its acquisition date shall be subtracted from its income amount subject to taxation of transfer income

1. In cases of newly-built house acquired from a housing developer:

A newly-built house acquired by a person who first concludes a sales contract and pays a down payment with a housing constructor during the period from May 23, 2001 to June 30, 2003 (hereafter in this Article, referred to as the “newly-built house acquisition period”): Provided, That a house that has been occupied as of the date of a sales contract under the Housing Construction Promotion Act or an redevelopment association under the Urban Redevelopment Act, and that has a fact falling under the causes prescribed by the Presidential Decree, shall be excluded from

2. Where a newly-built house (including a house acquired by a housing association under the Housing Construction Promotion Act or a member as prescribed by the Presidential Decree through an redevelopment association under the Urban Redevelopment Act);

A newly-built house that has obtained approval or inspection for use (including approval for temporary use) within the newly-built house acquisition period

Sub-laws

Article 1 (Enforcement Date) This Act shall enter into force on January 1, 2003.

Article 29 (Transition Measures concerning Special Taxation of Transfer Income Tax for Purchasers of Newly-Built Houses)

(1) In cases where a newly-built house, which was concluded with a housing constructor for the first time under the previous provisions of Article 9 (1) or 99-3 (1) prior to the enforcement of this Act, is transferred after this Act enters into force after the enforcement of this Act, the previous provisions shall apply to the calculation of the amount subject to abatement or exemption of transfer income tax and that of the amount subject to taxation of transfer income tax, notwithstanding the amended provisions of Article 99 (1) or 99-3 (1). In this case, the de facto standard of a newly-built house as of the date when a sales contract is concluded and the down payment is paid

(2) Where a newly-built house under Article 99-3 (1) 2 commences its construction work for the relevant newly-built house before this Act enters into force, and has obtained the approval for use or inspection for use (including approval for temporary use) before June 30, 2003, the previous provisions shall, notwithstanding the amended provisions of Article 99-3 (1), be applied.

(1) Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 17829, Dec. 30, 2002)

○ Special taxation for transfer income tax on the acquisitor of a newly-built house under Article 99-3

(1) The term "area prescribed by Presidential Decree" in the main sentence of Article 99-3 (1) of the Act means the powder, day, square village, mountain village, middle-dong and new urban area designated and publicly notified as a prearranged area for housing site development under Article 3 of the Housing Site Development Promotion Act.

(1) Income Tax Act (amended by Act No. 6781 of Dec. 18, 2002)

Article 89: Non-taxable Transfer Income

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

3. Income accruing from a transfer of one house for one household prescribed by Presidential Decree (excluding high-class houses the total floor area, value, facilities, etc. of which exceed the standard prescribed by Presidential Decree of a residential building) and the appurtenant land within the area calculated by multiplying the area of land on which the building is built by the ratio prescribed by Presidential Decree by region

(1) Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 17751 of Oct. 1, 2002)

The term "high-class house, the total floor area, value, facilities, etc. of which exceed the standards prescribed by Presidential Decree" in Article 89 subparagraph 3 of the Act of the scope of high-class houses under Article 156 of the Act means the houses falling under any of the following subparagraphs and the land annexed thereto:

2. An apartment house (including a tenement house, but excluding the case deemed to be a detached house under Article 155 (15)) whose exclusive area (including the area of an underground room used for exclusive residence) of the house is not less than 165 square meters and whose actual transaction price at the time of transfer exceeds 60 million won; and

(1) Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 17825 of Dec. 30, 2002)

The term "high-class house, the total floor area, value, facilities, etc. of which exceed the standards prescribed by Presidential Decree" in Article 156 subparagraph 3 of the Act on the Scope of High-class House means a house falling under any of the following subparagraphs and land annexed thereto:

2. An apartment house (including a tenement house, but excluding the case deemed to be a detached house under Article 155 (15)) whose exclusive area (including the area of an underground room used for exclusive residence) of the house is not less than 149 square meters and the actual transaction price at the time of transfer exceeds 60 million won; and

Sub-laws No. 17751, October 1, 2002

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

(1) Income Tax Act (amended by Act No. 6781, Dec. 18, 2002)

Article 89: Non-taxable Transfer Income

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

3. Income accruing from a 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 land to which the building is fixed by the ratio as determined by region under the Presidential Decree;

(1) Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 17825, Dec. 30, 2002)

§ 156. Scope of expensive houses

(1) The term “high-priced house whose value exceeds the standard determined by the Presidential Decree” in subparagraph 3 of Article 89 of the Act means that the sum of the actual transaction values at the time of transfer of a house and its appurtenant land (where a part of a house is transferred, referring to the amount calculated by dividing the sum of the actual transaction values by the ratio occupied by the area transferred in

C. Determination

(1) Whether a newly-built house constitutes a newly-built house under Article 99-3(1)1 of the former Act

Article 99-3 (1) of the former Act provides that capital gains tax on the transfer of a newly-built house shall be reduced or exempted for the person acquiring the newly-built house temporarily for the purpose of supporting the real estate game located at the time of its legislation. 1) In the case of the newly-built house subject to its application, the newly-built house shall be divided into the newly-built house (No. 1) and the newly-built house (No. 2) constructed by him, and 2) in the case of the former, 'the newly-built house acquired by a person who concludes a sales contract with a housing developer and pays a down payment' shall include the house as prescribed by the Presidential Decree, 'the newly-built house acquired through a housing association, etc. within the 'the newly-built house', and 'the newly-built house that has been approved for use or inspection within the 'the newly-built house' shall include the house acquired by a member as prescribed by the Presidential Decree through the housing association, etc. within the 'the newly-built house acquisition period'.

In light of such characteristics, Article 99-3 (1) 1 of the former Act provides that a newly-built house acquired by a housing association member, etc. through a housing association, etc. shall include a house prescribed by the Presidential Decree, which is the same as subparagraph 1, in a newly-built house constructed by a housing association member, etc., and provides that a newly-built house acquired by a housing association member, etc. shall include a house acquired by a housing association member as prescribed by the Presidential Decree through a housing association, etc. In this regard, a newly-built house acquired by a housing association member under Article 99-3 (1) of the former Act and a newly-built house ( subparagraph 2) constructed by a housing association member, etc., shall not be clearly distinguished from each other in terms of concept, and each specific content thereof shall be delegated to the Presidential Decree to meet social and economic circumstances of a housing association in order to achieve the legislative purpose of supporting a sunken real estate competition, even if the association member, etc. first acquired a newly-built house by a housing association member, other than the newly-built house acquisition period, the remaining new house under Article 9 of the former Act.

According to the above facts, the association of this case concluded a sales contract with a general person who is not a member of the association from April 25, 2002 to April 27, 2002 within the newly-built house acquisition period and received the down payment with respect to the remaining apartment remaining after supplying the above ○○○○ apartment to a member of the association. Thus, even if the approval for use of the apartment of this case was made on January 28, 2005 after the newly-built house acquisition date, the plaintiff constitutes the acquisition of newly-built house subject to reduction of capital gains tax pursuant to Article 99-3 (1) 1 of the former Act and Article 99-3 (3) 2 of the former Enforcement Decree, barring any special circumstances.

(2) Judgment on the defendant's assertion

(A) In light of the fact that Article 99-3 (3) 2 of the former Enforcement Decree provides that a house acquired from a housing construction proprietor shall be interpreted within the delegation scope, and it shall be an exception to fair taxation, etc., the defendant asserts that a house under the above provision of the former Enforcement Decree shall be limited to a house acquired by a housing association, etc. as a general buyer. However, the interpretation of the tax law shall be interpreted in accordance with the legal text, unless there are special circumstances, and it shall not be permitted as it goes against the principle of no taxation without the law, that the interpretation of the tax law shall be interpreted in accordance with the legal text, and it shall not be permitted as it is in violation of the principle of no taxation without the reasonable reason.

(B) Next, the defendant asserts that the plaintiff's acquisition of the apartment of this case did not obtain the approval of use as of December 11, 2002 as of January 28, 2005, which was revised by Act No. 6762 of December 11, 2002 (hereinafter referred to as the "new Act") and obtained the approval of use on January 28, 2005, after the new acquisition date, it shall not be subject to the old Act under Article 29 of the Addenda of the new Act, but shall be subject to the new Act. Therefore, according to Article 99-3 (1) and Article 99-3 (1) of the Enforcement Decree of the new Act as amended by Presidential Decree No. 17829 of December 30, 202 (hereinafter referred to as the "new Enforcement Decree") and Article 89-3 (1) of the Income Tax Act as of December 18, 2002, it does not constitute the actual transaction price at the time of transfer.

살피건대, 신법 제99조의3 제1항 및 신시행령 제99조의3 제1항, 위 2002. 12. 18. 개정된 소득세법 제89조 제3호, 2002. 12. 30. 개정된 소득세법 시행령 제156조 제1항과 그 각 개정 전의 규정 등에 의하면, 종래에는 구법 제99조의3 제1항 등의 규정에 의하여 지역적인 제한 없이 주택의 전용면적이 일정한 규모 이상이고 양도 당시 실지거래가액이 6억원을 초과하는 고급주택만을 양도소득세 감면대상인 신축주택에서 제외하였는데, 위와 같은 법령 개정 후의 신법 제99조의3 제1항 등의 규정에서는 부동산가격이 급등하거나 급등할 우려가 있는 서울을 비롯한 수도권의 과천, 분당, 일산, 평촌, 산본, 중동 등의 신도시지역에 소재하는 주택과 양도 당시 실지거래가액이 6억원을 초과하는 고가주택을 양도소득세 감면대상에서 제외하기로 하면서, 다만 신법 부칙 제29에서 경과조치로, 신법 시행 전에 구법 제99조의3 제1항의 규정에 의하여 주택건설업자와 최초로 매매계약을 체결하고 계약금을 납부하였거나, 자기가 건설한 신축주택으로서 사용승인 등을 받은 신축주택을 신법 시행 후 양도하는 경우 신법의 개정규정에 불구하고 구법을 적용하되, 이 경우 매매계약을 체결하고 계약금을 납부한 날 또는 자기가 건설한 신축주택으로서 사용승인 등을 받은 날 당시의 고급주택 기준을 적용하고(위 부칙 제29조 제1항), 또한 자기가 건설한 신축주택으로서 신법 시행 전에 당해 신축주택에 대한 공사에 착수하여 2003. 6. 30. 이전에 사용승인 등을 받은 경우에도 구법을 적용하도록 규정하고 있다(위 부칙 제29조 제2항). 그 중 위 부칙 제29조 제1항은 구법 적용의 요건으로 신법 시행 전에 구법 제99조의3 제1항 제1호 및 제2호의 요건을 갖출 것을 요구하는 내용으로서, 위 부칙 조항에는 위 구법 규정에서 괄호 안에 병기한 '주택조합 등을 통하여 취득하는 주택으로서 대통령령이 정하는 주택'(제1호) 내지 '주택조합 등을 통하여 대통령령이 정하는 조합원이 취득하는 주택'(제2호)이 병기되지는 아니하였지만, 이들 경우를 '주택건설업자와 최초로 매매계약을 체결하고 계약금을 납부한 경우'(제1호) 또는 '자기가 건설한 신축주택으로서 사용승인 등을 받은 경우'(제2호)와 달리 취급할 아무런 합리적인 이유가 없는 만큼, 위 부칙 제29조 제1항의 요건 중에는 구법 제99조의3 제1항 제1호 및 제2호의 괄호 안에 병기된 내용들도 포함되어 있다고 해석함이 상당하고, 위 부칙 조항 후문에 고급주택 기준의 적용시점으로 규정되어 있는 '매매계약을 체결하고 계약금을 납부한 날'과 '자기가 건설한 신축주택으로서 사용승인 등을 받은 날' 역시 구법 제99조의3 제1항 제1호 및 제2호의경우에 대응하는 의미로 파악하여야 할 것이므로,구법 제99조의3 제1항 제1호, 구시행령 제99조의3 제3항 제2호 소정의 신축주택의 경우 고급주택 기준의 적용시점이 되는 '매매계약을 체결하고 계약금을 납부한 날'이라 함은 주택조합 등이 신축주택 취득기간 내에 조합원분양분을 제외한 잔여주택에 관하여 조합원 외의 자와 매매계약을 체결하고 그 계약금을 납부 받은 날을 의미한다고 할 것이다.

As seen earlier, the instant association concluded a sales contract with persons other than its members and received the down payment with respect to the said remaining apartment from April 25, 2002 to April 27, 2002, the newly-built house acquisition period. Thus, even if the approval for use was made after the newly-built house acquisition period, the former provisions shall apply pursuant to the first sentence of Article 29(1) of the Addenda of the new Act. Meanwhile, Article 89 subparag. 3 of the former Income Tax Act (amended by Act No. 6781 of Dec. 18, 2002), Article 156 subparag. 2 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 1751 of Oct. 1, 202) provides that the high-class house in the apartment house exceeds the actual transaction price of 165m2 or more at the time of transfer, it does not constitute the acquisition of the newly-built house under Article 9(2)9 of the former Enforcement Decree of the newly-built house Act at the time of this case.

Therefore, the defendant's assertion that the plaintiff is not subject to the old law under Article 29 of the Addenda to the new law but subject to the new law is not justified.

(C) In addition, the defendant asserts that the plaintiff is a member of the association of this case as of the date of the approval of the reconstruction project plan of the association of this case pursuant to Article 99-3 (3) 2 of the Enforcement Decree of the Restriction of Special Taxation Act to apply the apartment of this case to a newly-built house subject to reduction or exemption of capital gains tax under Article 99-3 (1) 1 of the former Act, and that the plaintiff is not a member of the association of this case as of April 28, 2001, since the association of this case was not a member of the association of this case at the time of the

Article 99-3 (3) 2 of the former Enforcement Decree does not impose any restrictions on the time of acquisition of the status of a member subject to reduction or exemption of capital gains tax. Article 99-3 (3) 2 of the Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 17458, Dec. 31, 2001; Article 99-3 (3) 2 of the Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 17458) limits the scope of a member as of the date of approval of a rebuilding project plan. According to Article 11 of the Addenda of the above Decree, the amended provision of Article 99-3 (3) 2 of the above Enforcement Decree provides that the provision shall apply from the date of first acquisition of the status of a member after the enforcement date of the above Enforcement Decree (amended by Presidential Decree No. 1 January 1, 2002). As long as the plaintiff acquired the status of a member of the instant association on Oct. 31, 2001, 201.

(3) Therefore, the Plaintiff’s acquisition of a newly-built house subject to reduction or exemption of capital gains tax under Article 99-3(1)1 of the former Act and Article 99(3)2 of the former Enforcement Decree shall be subject to reduction or exemption of capital gains tax following the transfer of the apartment of this case. Thus, the instant disposition made on a different premise is unlawful.

3. Conclusion

Therefore, the Plaintiff’s claim seeking revocation of the instant disposition is accepted.

[Seoul High Court Decision 2007Nu17061, Dec. 28, 2007]

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

The defendant's disposition of refusal to correct or reject capital gains tax against the plaintiff on February 17, 2006 shall be revoked.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

Therefore, the judgment of the first instance court is legitimate, and the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition.