[2] The case holding that Article 154 (1) of the former Enforcement Decree of the Income Tax Act stipulating that the transfer income of one house per household may be applied to the transfer income of another house where another house is transferred under the condition that the building of the reconstruction apartment is not destroyed after the approval of the business plan for the reconstruction apartment was made

[2] The case holding that Article 15 (16) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 1804 of Jun. 30, 2003) provides that the right to acquire real estate distinguished from the original house shall be regarded as a house, and that the right to acquire the house is always regarded as a house without any explicit provision under the law, can dance the house under Article 94 (1) 2 (a) of the former Income Tax Act (amended by Act No. 7006 of Dec. 30, 2003). The purpose of non-taxation on income accrued from the transfer of one house for one household lies in guaranteeing the people's residential stability and the freedom of residence and relocation, and that Article 155 (16) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 1804 of Jun. 30, 2003) provides that the right to use the house before the reconstruction of the previous house or the right to use the apartment house is de facto established before the reconstruction association or the new house.

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

가. 원고는 1991. 12. 24. 서울 송파구 잠실동 22 잠실주공아파트 284동 103호 65.72㎠(이하 ‘이 사건 재건축아파트’라 한다)를, 1998. 1. 14. 서울 송파구 잠실동 101-1 우성아파트 2동 503호 96.65㎡(이하 ‘이 사건 아파트’라 한다)를 각 취득하여 보유하고 있던 중 이 사건 재건축아파트에 대하여 재건축이 시행되어 2003. 2. 8. 사업계획승인이 났다.

B. After that, on June 18, 2003, the Plaintiff transferred the apartment of this case to the largest Doctrine in KRW 500 million, and on September 1, 2003, the Plaintiff made a preliminary return on the tax base of capital gains tax corresponding to non-taxation as one house for one household to the Defendant.

C. Accordingly, the Defendant issued the instant disposition to the Plaintiff on October 10, 2003, imposing capital gains tax of KRW 45,295,200 on the Plaintiff in the year 2003, on the ground that the Plaintiff had the reconstruction apartment of this case, which had been approved at the time of the transfer of the instant apartment but was not destroyed by the building.

D. Meanwhile, on October 6, 2001, the Plaintiff leased the reconstruction apartment of this case to the lessee's Gangwon-do for the term of October 6, 2003, and the lessee's Gangwon-do residing until September 26, 2003, before the said reconstruction apartment was removed on May 18, 2004.

[Grounds for recognition] The absence of dispute, Gap 3 through 6, 7-1, 2, 8, 12, 1 and 3

2. Whether the instant disposition is lawful

A. The parties' assertion

(1) The plaintiff's assertion

The legal principle that housing for which approval for a re-building project plan has been granted falls under the right to acquire real estate other than a house regardless of the destruction of a building, and Article 155 (16) of the Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 18044, Jun. 30, 2003; hereinafter the same) provides that the right to move into a reconstruction association member shall meet the requirements for non-taxation for one house for one household up to the date of approval for a project plan and treat it as the right to acquire real estate other than a house by excluding it from the period of possession during which the house is destroyed after the date of approval for a project plan until the date of approval for a re-building plan, and the decision of a national tax appeal (the case of the national tax appeal 2003Do843, Jun. 11, 2003) is determined that the reconstruction association member transfers real estate after the date of approval for a project plan, the reconstruction apartment of this case constitutes the right to acquire real estate after the transfer of the right to acquire it.

(2) The defendant's assertion

The purpose of Article 155 (16) of the Enforcement Decree of the Income Tax Act is to exempt the owner of the right to move into a housing unit as of the date of approval for a rebuilding project, if the right to move into a housing unit meets the requirements for non-taxation for one household as of the date of approval for a rebuilding project, and if there is no other house when the right to move into a housing unit is transferred, it is merely to the effect that the owner of the right to move into a housing unit is paid the acquisition tax and registration tax on the land and building of the reconstruction apartment in light of the fact that urban gas, water, electricity, etc. is continuously supplied and used until the date of approval for a rebuilding project in the case of a reconstruction apartment in this case, even though the right to move

C. Relevant statutes

The entries in the attached statutes are as follows.

(c) Markets:

(1) The right to acquire real estate under Article 94 (1) 2 (a) of the Income Tax Act (amended by Act No. 6852, Dec. 30, 2002; hereinafter the same) which is subject to capital gains tax is the right to acquire real estate, the main purpose of which is to acquire real estate itself, and which is not directly subject to or otherwise subject to the right to acquire real estate, if the main purpose of which is to acquire real estate is to acquire real estate directly, at least, is to acquire real estate if the main purpose of which is to acquire the right meets additional requirements in the acquisition of real estate itself or goes through certain procedures (Supreme Court Decision 98Du205, Sept. 29, 200). The right to purchase real estate (right to purchase) acquired by a member of a reconstruction association under the Housing Construction Promotion Act belongs to the above category of right.

Meanwhile, a reconstruction project under the Housing Construction Promotion Act (amended by Act No. 6841 of Dec. 30, 202; hereinafter the same shall apply) is a project that constructs new housing on the site that removes old and inferior housing and removes it. The approval of reconstruction project plan is a final determination and approval of all the project contents of the housing construction project promoted by the reconstruction association and most essential contents of the management and disposal plan [i.e., Article 32(2) of the Enforcement Decree of the Housing Construction Promotion Act (amended by Presidential Decree No. 18046 of Jun. 30, 2003; hereinafter the same shall apply], Article 34(1) of the Urban Redevelopment Act (amended by Act No. 6852 of Dec. 30, 200; hereinafter the same shall apply], and it is not necessarily necessary to separately obtain permission, approval, approval or report on the reconstruction project plan (Article 33 of the Housing Construction Promotion Act). The right to purchase new housing or new housing ownership of the housing site can not be acquired under the Housing Construction Promotion Act (see Article 484 of the Housing Construction Promotion Act).

(2) According to Article 155(16) of the Enforcement Decree of the Income Tax Act (hereinafter “instant provision”), if a partner has no other house at the time of transfer of the right to sell the apartment, and the partner satisfies the non-taxation requirements under Article 154(1) of the Enforcement Decree of the Income Tax Act, which is the period of possession of the existing house as of the date of the approval of the management and disposal plan (or the date of approval of the business plan, if the existing house is removed before it is removed, the date of removal of the existing house), the right to sell the apartment shall be treated as a house, and first of all, in applying the non-taxation provisions of the Housing Act, if the reconstruction apartment in this case is transferred with the right to sell the apartment in this case,

It is clear that the right to purchase real estate distinct from the initial house is a right to acquire it, and it is always deemed a house without an express provision under the law. The purpose of non-taxation is to ensure the stability of the residential life and the freedom to move, and to ensure the ownership of the house for one household. The interpretation of tax laws and regulations is not allowed to be interpreted as a house under the law, and it is not allowed to be expanded or analogically interpreted as a house without a reasonable reason. The provision of this case is to be considered as a house only if it is transferred with the ownership of the house for 198, and it is possible to resell the right to sell the house by the revision of the Enforcement Decree of the Housing Construction Promotion Act on December 28, 1998. The provision of this case is to be considered as a non-taxation of the ownership of the house for 199,60,000 won, which is a non-taxation of the ownership of the previous house for 19,000 won, and it is to be applied to the transfer of the ownership of the house for 190.

(3) Next, in the instant case, if the approval of the project plan for the instant reconstruction apartment at the time of the transfer of the apartment, but the building has not yet been destroyed or lost, it is a matter of whether the building still exists in the determination of non-taxation for one house for one household.

In this regard, the defendant's assertion is acceptable from the point that there is a building used for residential purposes, and from the point that one house non-taxation for one household is exceptional and its application should be reduced in order to prevent abuse.

However, under the Housing Construction Promotion Act, members of a reconstruction association acquire the right to sell the previous land and buildings only to the reconstruction association, and the right to use the previous buildings, etc. after the approval of a project plan is deemed to have been established in the new house, etc. In addition, the reconstruction apartment shall be converted into the right to sell the existing building after the approval of a project plan, and it is common practice that only the right to sell the existing building shall be calculated at a high price and traded without considering the current status and value of the existing building. Above all, it is reasonable to consider whether the ownership after the approval of a project plan is to be treated as the house in the case of transfer of the right to sell the new apartment after the completion of the reconstruction project. Even if the ownership of the existing building after the approval of a project plan is to be suspended, it is reasonable to consider the fact that the ownership of the new apartment after the completion of the project plan can not be seen as having been destroyed or lost, and it is also reasonable to consider whether the new apartment house can be purchased at the same time as the sale price of the existing building after the completion of the reconstruction project.

(4) He returned to the instant case, and the Plaintiff is bound to hold one unit of apartment house converted into the instant reconstruction apartment and one unit of apartment house, which is the instant apartment house, and therefore, the Plaintiff should be exempted from taxation so long as it satisfies the requirements for the period of possession three years. The Plaintiff owned the instant apartment on January 14, 1998, and transferred the instant reconstruction apartment to February 8, 2003, which was after the approval of the project plan was passed after the reconstruction apartment was approved. Accordingly, the income accrued from the transfer of the instant apartment constitutes a non-taxable income based on the transfer of one house by one household under Article 154(1) of the Enforcement Decree of the Income Tax Act.

Therefore, the defendant's disposition of this case is unlawful from a different point of view.

3. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is so decided as per Disposition.

Authority to create a judge