The costs of appeal are assessed against the defendant.

[Seoul High Court Decision 2007Nu16624, Oct. 09)]

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

The reasoning for the court's explanation on this case is that the first instance court's decision was made on March 27, 2002 -- the general public notice of sale on March 27, 2002 --- the public notice of sale was made on March 27, 2002 - from April 2, 2002 to September 9 of the same year, and the winner was determined by lot after receiving an offer from applicants with certain qualifications, such as subscription deposit, and then concluding a sales contract with the winners on April 27, 2002 and receiving the down payment at around that time."

In addition to the change of ‘4.27 April 27, 2005' to ‘202.4.4', it is identical to the reasons for the judgment of the first instance, so it is accepted in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

2. Conclusion

Therefore, the defendant's disposition of this case shall be revoked as it is unlawful, and the judgment of the court of first instance is justified as it is with the conclusion, and it is so decided as per Disposition.

[Seoul Administrative Court 2007Guhap5127, 2007)]

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 reconstruction of ○○○ apartment building located in ○○○○○○○○○○ apartment building located in 670, 00, and constructed 805 households on the said site on the said site, and obtained approval for its use on January 28, 2005. In the process, the said ○○○○ apartment reconstruction association entered into a general sales contract on March 27, 2002 for the remaining apartment remaining after supplying it to the members among the said ○○○○○ apartment building, and received the down payment for the first time on April 27, 2002.

B. After acquiring the status as a member of the instant association, the Plaintiff purchased the said ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ (hereinafter “instant apartment”) from the instant association, and completed the registration of preservation of ownership on March 2, 2005, and completed the registration of preservation of ownership on August 17, 2005, transferred the instant apartment at KRW 1.79 billion to ○○○○○○○○○○○, and voluntarily paid KRW 343,70,390 with the transfer income tax following the transfer of the instant apartment.

C. After that, on November 21, 2005, the Plaintiff filed a claim 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. On the other hand, the defendant issued the disposition of this case rejecting the plaintiff's request for correction on November 10, 2006 on the ground that the approval for use of the apartment of this case was made on January 28, 2005 after the new house acquisition period (from May 23, 2001 to June 30, 2003) under the premise that the apartment of this case 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] Facts without dispute, A1, A2-1, 2, A3-1, 1, 3, and the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

Since the association of this case entered into a sales contract with general persons who are not members of the association within the newly-built house acquisition period under Article 99-3 (1) 1 of the former Act for the remaining apartment remaining remaining apartment that remains after supplying to the association members among the above ○○○○ apartment, and received the down payment, even if the approval for use of the apartment of this case was made after the newly-built house acquisition period, 10/100 of the transfer income tax shall be reduced or exempted as it constitutes the acquirer of newly-built house subject to reduction or exemption of transfer income tax under 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, Dec. 31, 2001; hereinafter referred

Nevertheless, under the premise that the apartment house of this case constitutes a newly-built house under Article 99-3 (1) 2 of the Restriction of Special Taxation Act, the defendant issued the disposition of this case on the ground that approval for use was obtained after the newly built house acquisition period and fails to meet the requirements for reduction or exemption under the above provision, which is unlawful and revoked.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

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

(A) Article 99-3 (1) of the former Act provides that a person who acquired a newly-built house shall be granted a reduction or exemption of transfer income tax due to the transfer of the newly-built house in a temporary case for the purpose of supporting the real estate game located in the time of its legislation. Article 99-3 (1) of the former Act provides that a person who acquired a newly-built house from a housing construction business operator shall be granted a first sales contract with a housing construction business operator and a person who paid a down payment shall be granted a newly-built house after entering into a sales contract with the housing construction business operator during the newly-built house acquisition period, and includes a newly-built house acquired through a housing association, etc., as well as a house acquired by a member as prescribed by the Presidential Decree through a housing association, etc. within the first new house acquisition period, and Article 99-3 (3) of the former Enforcement Decree provides that a person who acquired the remainder of the newly-built house after entering into the sales contract with the housing association, etc., and directly acquires the down payment within the first new house acquisition period.

(B) In light of such characteristics, Article 99-3 (1) 1 of the former Act provides that a newly-built house acquired by a housing construction business operator through a housing association, etc. shall include a house acquired by a housing construction business operator and prescribed by the Presidential Decree through a housing association, etc. as provided in subparagraph 1. In this regard, a newly-built house (No. 1) acquired by a housing construction business operator under Article 99-3 (1) of the former Act or a newly-built house (No. 2) constructed by a housing association, etc. is not a provision that can be clearly distinguished from each other. Each specific content of the newly-built house is delegated to meet the social and economic situation of a housing construction business operator or to support a newly-built house from a housing construction business operator to meet the legislative purpose of Article 9-3 (1) 1 of the former Act, and the former Enforcement Decree provides that a house acquired by a housing association operator through a housing association, etc. shall be included in the newly-built house (excluding the newly-built house).

In relation to the amendment of Article 99 of the former Act and Article 99 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 16584, Oct. 30, 1999; amended by Presidential Decree No. 17034, Dec. 29, 2000); the Commissioner of the National Tax Service notified the director of each regional tax office of December 15, 199 to the purchaser of the newly-built house; the former notification of the amendment of capital gains tax reduction or exemption to the person acquiring the newly-built house to whom each member of the reconstruction association or redevelopment association notifies the director of each regional tax office of December 15, 199; the former notification of the amendment of capital gains tax reduction or exemption to the apartment acquired by a member of the reconstruction association or redevelopment association of the newly-built house after deeming it a house constructed by him to have undergone a usage inspection, etc. during the acquisition period of the newly-built house; however, in the case of the newly-built house, the apartment house acquired by a member of the association or the redevelopment association shall be exempted.

Therefore, if a housing association, etc. concludes a sales contract with a person other than the association members and receives the down payment with respect to the remaining house except for the portion of the association members within the newly-built house acquisition period under Article 99-3 (1) of the former Act, even if it does not fall under subparagraph 2 of the same paragraph because it did not obtain approval or inspection for use within the newly-built house acquisition period, the transfer income tax should be reduced by deeming that the newly-built house acquired by the association

(C) However, according to the above facts, the association of this case entered into a sales contract with the general public for the remaining apartment remaining apartment remaining after supplying it to the members of the above Dong Dong Dong Dongdong Apartment apartment within the new house acquisition period and received the down payment on April 27, 2005 for the first time after the new house acquisition period. Thus, even if the approval for use of the apartment of this case was made on January 28, 2005 after the new house acquisition period, barring any special circumstances, the plaintiff constitutes the acquisition 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.

(2) Defendant’s assertion and judgment

(A) First, the defendant asserts that Article 99-3 (3) 2 of the former Enforcement Decree of the Act provides for a newly-built house acquired by a housing construction business operator is based on the delegation under Article 99-3 (1) 1 of the former Enforcement Decree, and thus, it should be interpreted within the scope of delegation basis. Thus, the above provision of the former Enforcement Decree provides that a house shall be interpreted only where

However, in light of the requirements for taxation, non-taxation, or tax reduction and exemption, and the interpretation of tax laws shall be interpreted in accordance with the text of the law unless there are special circumstances, and it shall not be permitted to expand or analogically interpret without reasonable grounds (see, e.g., Supreme Court Decision 83Nu680, Jun. 26, 1984). Therefore, the Defendant’s above assertion is contrary to the principle

(B) Next, the defendant asserts that the plaintiff's acquisition of the apartment of this case is not subject to the old law under Article 29 of the Addenda of the new law, but subject to the new law since the approval of use was obtained on October 31, 2003 after the new house acquisition date without obtaining the approval of use as of the enforcement date of the Restriction of Special Taxation Act amended by Act No. 6762 on December 11, 202 (hereinafter "new law").

살피건대, 신법 제99조의3 제1항 및 2002.12.30. 대통령령 제17829호로 개정된 같은 법 시행령 제99조의3 제1항, 위 2002.12.18. 법률 제6781호로 개정된 소득세법 제89조 제3호, 2002.12.30. 대통령령 제17825호로 개정된 소득세법 시행령 제156조 제1항과 그 각 개정 전의 규정 등에 의하면, 종래에는 구법 제99조의3 제1항등의 규정에 의하여 지역적인 제한 없이 주택의 전용면적이 일정한 규모 이상이고 양도 당시 실지거래가액이 6억 원을 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 6억 원을 초과하는 고가주택을 양도소득세 감면대상에서 제외하기로 하면서, 다만 신법 부칙 제29조에서 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 적용'하고(위 부칙 제29조 제1항), 또한 '자기가 건설한 신축주택으로서 신법 시행 전에 당해 신축주택에 대한 공사에 착수하여 2003.6.30. 이전에 사용승인등을 받은 경우에도 구법을 적용'하도록 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 구법규정에서 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 제2호의 경우에 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 신축주택취득기간 내에 조합원분양분을 제외한 잔여주택에 관하여 조합원 외의 일반 수분양자들과 매매계약을 체결하고 그 계약금을 납부받은 날을 의미한다고 할 것이다.

However, as seen earlier, the instant association concluded a sales contract with the general buyers other than the association members and received the down payment on April 27, 2002 with respect to the remaining apartment before the new house acquisition period. Thus, even if the use approval was made after the new house acquisition period, the former provisions shall apply pursuant to the main 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, 2002) provides that the high-class apartment house in the apartment house is of 165 square meters or more, and the actual transaction price at the time of transfer is more than 600 million won, the exclusive use area of the apartment house in this case constitutes the base of Article 9(1)9(3) of the former Enforcement Decree of the newly-built Housing Act.

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.

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is decided as per Disposition by admitting it.