신축주택취득기간 경과 후 사용승인을 받은 경우에도 감면대상에 해당됨[국패]
the approval for use after the expiration of the new house acquisition period shall be subject to reduction and exemption.
Where a housing association, etc. has received a down payment by directly concluding a sales contract for the remaining house within the newly-built house acquisition period with a person other than its member, it is also eligible to receive approval for use or inspection for use after the expiration of the newly-built house acquisition period. In the case of a house acquired from a constructor, whether it is a high-class house exempt from reduction or exemption shall be determined as at the time the remaining apartment
Article 99-3 of the former Restriction of Special Taxation Act
Article 29 of the former Restriction of Special Taxation Act
The appeal is dismissed.
The costs of appeal are assessed against the defendant.
The grounds of appeal are examined.
1. Regarding ground of appeal No. 1
Article 9-3 (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") provides that a resident shall acquire a newly-built house falling under any of the following subparagraphs and transfer it within 5 years from the date of its acquisition, the tax amount equivalent to 100/100 shall be reduced or exempted: Provided, That this provision shall not apply to the case where the newly-built house concerned constitutes a high-class house excluded from the object of non-taxation of capital gains tax under subparagraph 3 of Article 89 of the Income Tax Act, such as the case of acquiring a newly-built house from a housing construction business operator, and that a person who first concludes a sales contract with a housing association during the period from May 23, 201 to June 30, 203 (hereafter referred to as the "newly-built house acquisition period" in this Article) and directly obtains the remaining house under Article 9 of the former Enforcement Decree of the Housing Association Act (including the house acquired through the Housing Association or the Urban Redevelopment Association under the Housing Construction Act) within 930.3
In the same purport, the court below accepted the judgment of the court of first instance, and held that the plaintiff's apartment of this case that the plaintiff acquired as a member of the association of this case was approved for use on January 28, 2005 after the new house acquisition date, but the association of this case did not err in the misapprehension of legal principles as to the interpretation of Article 99-3 (1) 1 of the former Act and Article 99-3 (3) 2 of the former Decree on the ground that the plaintiff was a purchaser of newly-built house whose transfer income tax was fully reduced under Article 99-3 (1) 1 of the former Act and Article 99-3 (3) 2 of the former Decree on the ground that the association of this case was sold to non-member of the association of this case for the remaining apartment after supplying it to the association of this case among the reconstruction apartment of this case.
2. Regarding ground of appeal No. 2
Article 29 (1) of the Addenda of the former Restriction of Special Taxation Act (amended by Act No. 6762 of Dec. 11, 2002 and enforced January 1, 2003; hereinafter referred to as the "New Act") provides that Article 29 (1) of the Addenda of the former Restriction of Special Taxation Act (amended by Act No. 6762 of Dec. 11, 2002) shall apply to cases where a newly-built house for which a housing developer first concludes a sales contract with a housing constructor before its entry into force, or for which an approval for use or inspection for use (including approval for temporary use) has been obtained after its enforcement under Article 9 (1) or 99-3 (1) of the former Act is transferred after its enforcement, the provisions of Article 99 (1) or 99-3 (1) of the former Enforcement Decree of the former Act shall apply to the calculation of income subject to abatement or exemption of transfer income tax and income amount of the newly-built house for which a new-built house falls under subparagraph 1 of Article 9 of the former Act.
In the same purport, the court below cited the judgment of the court of first instance, and held that the association of this case was a newly established house subject to reduction or exemption of capital gains tax under the first sentence of Article 29(1) of the Addenda of the new law even if the approval for use was made after the new house acquisition period, since the association of this case sold the remaining apartment from April 25, 2002 to April 27, 2002 within the new house acquisition period to the general public and received a down payment. Therefore, the court below was just in holding that the apartment of this case constitutes a newly established house subject to reduction or exemption of capital gains tax under the first sentence of Article 29(1) of the Addenda of
3. Conclusion
Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.