[양도소득세부과처분취소][공2005.4.15.(224),607]
In case where a partner of redevelopment association or reconstruction association transfers the right of sale, the requirements to constitute non-taxation of capital gains tax for the income accrued from the transfer of the right of sale.
According to Article 89 subparagraph 3 of the former Income Tax Act (amended by Act No. 6781 of Dec. 18, 2002), Article 154 (1), Article 155 (1) and Article 155 (16) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 17456 of Dec. 31, 2001), where a partner of redevelopment association or reconstruction association transfers a right to sell a house, such right to sell a house is distinct from that of "right to acquire real estate" under Article 94 (1) 2 (a) of the former Income Tax Act, which is non-taxable provision for "one house for one household", and Article 89 (1) 3 of the same Act and Article 154 (1) of the Enforcement Decree of the same Act, which is non-taxable for transfer income tax, the right to sell a house can not be acquired by directly applying the same ownership of the existing house at the time of sale, and the existing house can be sold within 15 years prior to the date of sale plan.
Article 89 subparagraph 3 of the former Income Tax Act (amended by Act No. 6781 of Dec. 18, 2002), Article 154 (1), Article 155 (1), and Article 155 (1) and (16) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 17456 of Dec. 31, 2001)
Supreme Court Decision 87Nu971 Decided June 28, 198 (Gong1988, 1120) Supreme Court Decision 91Nu9817 Decided March 10, 1992 (Gong1992, 1331), Supreme Court Decision 90Nu10346 Decided December 8, 1992 (Gong1993Sang, 480), Supreme Court Decision 93Nu5772 Decided September 10, 1993 (Gong193Ha, 2819), Supreme Court Decision 93Nu17324 Decided March 8, 1994 (Gong194Sang, 1214), Supreme Court Decision 98Du30531 Decided December 10, 2013 (Gong30531, 204, 204)
Plaintiff (Attorney Kim Jong-sik, Counsel for plaintiff-appellant)
Samsung Head of Samsung District Tax Office (Law Firm Gyeong & Yang, Attorneys Im-soo et al., Counsel for the plaintiff-appellant)
Seoul High Court Decision 2003Nu15241 Delivered on July 28, 2004
The appeal is dismissed. The costs of appeal are assessed against the defendant.
Article 89 subparagraph 3 of the former Income Tax Act (amended by Act No. 6781, Dec. 18, 2002; hereinafter referred to as the "Act") provides that one house for one household as prescribed by the Presidential Decree and any income accruing from the transfer of a specific land appurtenant thereto shall not be subject to capital gains tax. Article 154 (1) of the former Enforcement Decree of the Income Tax Act (amended by the Presidential Decree No. 17456, Dec. 31, 2001; hereinafter referred to as the "Enforcement Decree") provides that "one house for one household" shall be defined as "one house which is owned by the resident and his spouse within the same address or place of residence as of the date of transfer, and Article 155 (1) of the Housing Construction Promotion Act provides that "one house which is owned by another association under the provisions of Article 154 (1) of the former Housing Construction Promotion Act shall be defined as "one house which is newly removed within 2 years from the date of acquisition of the house by one household which owns the house in Korea," under the provisions of Article 15 (3).
According to the purport of each of the above provisions, where a redevelopment association or a rebuilding association's member transfers the right to sell housing, the right to sell housing shall be changed to "Article 94 (1) 2 (a) of the Enforcement Decree [Article 157 (3) 2 of the former Enforcement Decree" [Article 94 (1) 2 (a) of the former Enforcement Decree of the Act as amended on December 29, 200, Article 155 (16) of the former Enforcement Decree shall not be immediately reflected, and if a member of the redevelopment association or a rebuilding association transfers the right to sell housing to "the right to purchase housing" under Article 94 (1) 2 (a) of the former Enforcement Decree of the Act, Article 94 (1) 1 of the former Enforcement Decree of the Act, Article 94 (1) 5 of the former Enforcement Decree of the former Enforcement Decree of the Act, and Article 157 (3) 2 (a) of the former Enforcement Decree of the former Enforcement Decree of the Act shall be excluded from "the right to purchase housing" under Article 154 (5) of the former Enforcement Decree of the Act.
In the same purport, the court below acknowledged that the plaintiff acquired the new house of this case and moved to another place on or around April 26, 1999 when the reconstruction project was implemented after the plaintiff acquired the existing house of this case and resided therein on or around May 3, 1994, and thereafter transferred the sale right of this case, which was acquired on or around July 29, 199 according to the approved business plan on or around July 30, 2001. The plaintiff transferred the new house of this case within 2 years from the date of acquiring the new house of this case and owned the existing house of this case for 3 years or more at the date of approval of the business plan, so long as all the non-taxation requirements under Article 155 (1) of the Enforcement Decree are satisfied, the income from the transfer of the sale right of this case shall be subject to non-taxation of capital gains tax. In light of the above legal principles and relevant provisions and records, the court below's fact finding and judgment are justified, and there are no errors in the misapprehension of legal principles as to non-taxation of capital gains tax as alleged in the grounds for appeal.
Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.
Justices Shin Shin-chul (Presiding Justice)