The contents of the decision shall be the same as attached.

Article 98 (Time of Transfer or Acquisition)

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

A. On June 17, 1981, 1981, ○○ apartment house, the Plaintiff’s wife, acquired and owned 4 o-5 apartment house in Seoul, ○○-dong, ○○○-5 apartment house, and married with the Plaintiff on July 6, 1982. After that, the owners of the said apartment house and its neighboring apartment house, including ○○○ apartment house and its neighboring apartment house, determined the Housing Association (2 complex) on June 28, 2003, and obtained authorization for the establishment of the Housing Association from the head of Yangcheon-gu under the former Housing Construction Promotion Act (amended by Act No. 6916, May 29, 2003; hereinafter “Housing Construction Promotion Act”). On June 30, 2003, ○ apartment house was reconstructed under the Housing Construction Promotion Act of 205, 201, 30, 200, 206, 206, 30, 201, 206, 201.

B. On December 6, 1997, the Plaintiff acquired ○○○○○○○○○ apartment (hereinafter “instant apartment”) 103 dong 1704 (hereinafter “instant apartment”) from ○○-gu, Seoul, ○○○○○○○○○○, 1997, and transferred the apartment to 548,000,000 won on September 18, 2006, and then reported and paid KRW 62,670,150 as capital gains tax on November 30, 2006.

C. On January 22, 2007, the Plaintiff: (a) transferred the instant apartment within one year from the date of approval for the use of the instant apartment; (b) the Plaintiff filed a claim for correction on the ground that the transfer of the instant apartment constitutes a temporary transfer of two houses for one household; (c) however, in applying the temporary exemption provisions on two houses for one household on February 21, 2007, the Defendant rendered the instant disposition rejecting correction on the ground that the instant apartment acquired later was merely an extension of the existing house, and thus, was not subject to the application of the said provisions.

[Ground of recognition] The items in Gap evidence 1, 2, 5, 6, 7, and evidence 8-1, 2, Gap evidence 9-1, 2, 10, Eul evidence 1, 1, 2, and 3, and the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The parties' assertion

(1) Plaintiff

(A) On June 30, 2003, the ownership of the apartment house held by the plaintiff's wife was converted into the association member's relocation right. The time when the association member's relocation right re-transfers the ownership of the reconstruction apartment in this case into the ownership of the reconstruction apartment in this case should be viewed as the time of public announcement of transfer under the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents. In addition, since Article 18 (1) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents grants legal personality to the provisions established under the same Act, the reconstruction apartment in this case shall be deemed as constructed by the ○○○○ Group Rebuilding Housing Association (2 complex) which is a corporation, and therefore, the reconstruction apartment in this case shall not be referred to as the "building constructed by himself" as provided in Article 162 (1) 4 of

(B) Although the reconstruction apartment of this case is written on the aggregate building ledger as of September 15, 2006, the completion inspection certificate was issued after September 19, 2006, and it was not actually used or used before the use inspection. Therefore, the time of acquisition of the reconstruction apartment of this case shall be deemed to have been after September 19, 2006, which is the date of issuance of the completion inspection certificate pursuant to Article 162(1)4 of the Enforcement Decree of the Income Tax Act. The plaintiff transferred the apartment of this case to the former owner on September 18, 2006, which constitutes the transfer of one house per household.

(C) Even if the acquisition date of the reconstruction apartment of this case is deemed to be September 15, 2006, the transfer of the apartment of this case constitutes a temporary transfer of one house for one household under Article 155(1) of the Enforcement Decree of the Income Tax Act, which is subject to non-taxation.

(2) Defendant

Article 162 (1) of the Enforcement Decree of the Income Tax Act provides that the time of acquisition of a building constructed by himself shall be the date of issuance of the certificate of completion of use inspection, but it shall be the date of approval for use in the aggregate building ledger of the reconstruction apartment in this case. The date of approval is written on September 15, 2006, and the head of Yangcheon-gu approves the use of the reconstruction apartment in this case pursuant to the Housing Construction Promotion Act. Thus, the date of acquisition of the reconstruction apartment in this case is September 15, 2006, since the reconstruction apartment in this case is the date of completion of use inspection and approval for use under the Housing Construction Promotion Act, the date of acquisition of the reconstruction apartment in this case is the date of completion of use inspection and the reconstruction building cannot be deemed separate from the previous house in this case.

(b) Related statutes;

Article 89 (Non-Taxable Transfer Income Tax)

Article 98 (Time of Transfer or Acquisition)

Article 154 (Scope of “One House for One Household”)

Article 155 (Special Cases concerning One House for One Household)

Article 162 (Time of Transfer or Acquisition)

Article 33 (Approval of Business Plan, Building Permission, etc. of old Housing Construction Promotion Act)

Article 33-2 (Inspection, etc. of Use of Housing Construction Promotion Act)

Article 18 (Approval for Use of Building)

Article 18 (Juristic Personality, etc. of Partnership)

Article 54 (Public Notification, etc. of Transfer)

C. Determination

(1) Determination as to the Plaintiff’s assertion on the above A, (1), and (a)

The plaintiff's assertion appears to be a premise that the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents applies to the reconstruction apartment in this case. However, according to Articles 1 and 7 of the Addenda to the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (Act No. 6852, Dec. 30, 2002), the Housing Construction Promotion Act, which is the previous provision on the method of implementing the reconstruction project before July 1, 2003, as in the reconstruction apartment in this case, applies to the reconstruction project which was approved under the Housing Construction Promotion Act, and there is no application of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents. Furthermore, there is no evidence to acknowledge that the reconstruction apartment in this case was transferred under the above Act (it is difficult to see the time of acquisition under the Income Tax Act in light of Article 162 (1) 4 of the Enforcement Decree of the Income Tax Act even if the new apartment in this case was transferred to the plaintiff after the completion of the reconstruction apartment in this case's name.

(2) Determination as to the Plaintiff’s assertion on the above A. (1) and (b)

In light of the fact that housing supplied by members of a reconstruction association can be deemed to be substantially the same as one constructed by the plaintiff, and that registration of ownership has been made in the name of the plaintiff with respect to the reconstruction apartment in this case, the reconstruction apartment in this case can be deemed to be the building constructed by the plaintiff (in this regard, the defendant does not dispute) and Article 162 (1) 4 of the Enforcement Decree of the Income Tax Act based on delegation under Article 98 of the Income Tax Act is the date of delivery of the certificate of usage inspection for the time of acquisition of the building constructed by himself/herself, but if he/she actually uses it or obtains approval for use before the usage inspection, it is the date of actual use or use. The above provision of the Enforcement Decree is an agenda for the acquisition of assets in calculating the gains on transfer of assets, but there is no basis to view that the above provision should be applied only to the time of calculating the gains on transfer of assets, but it is also unreasonable to determine the time of acquisition of the remaining apartment in this case 160 houses prior to the 196th day of transfer.17.

Meanwhile, Article 162(1)4 of the Enforcement Decree of the Income Tax Act provides that the former Building Act (amended by Act No. 862, Oct. 17, 2007) which was in force at the time of transfer of the apartment building concerned shall apply for the approval of use of the building after the building owner completed the construction work. Article 18(1) provides that the permitting authority shall, upon receipt of an application for the approval of use, conduct an inspection for use and deliver the approval of use to the building which passed the inspection. However, there is room for doubt on what the delivery date of the inspection of the above Enforcement Decree of the Income Tax Act is the date of issuance of the inspection of the inspection for use under Article 162(1)4 of the same Act (see, e.g., Supreme Court Decision 90Da19919, Jan. 5, 195).

On the same premise, this case was entered in the aggregate building ledger of the reconstruction apartment of this case as of September 15, 2006. However, considering the whole purport of arguments as to Gap's evidence Nos. 11, 13, Eul evidence Nos. 1, and the result of fact inquiry to the head of Yangcheon-gu in this court, the date of Sep. 15, 2006 entered in the aggregate building ledger as of Sep. 15, 2006 was the date of internal settlement as to the proposal of the person in charge that the building should be constructed as a result of the usage inspection under the Housing Construction Promotion Act and deliver the completion certificate, and the head of Yangcheon-gu was difficult to receive the completion certificate before the date of use inspection from the head of the ○○○○○ building association (2 complex), etc. of the reconstruction apartment of this case, and it is difficult to view the time of acquisition as the date of use inspection of the apartment of this case as the date of 160 days prior to the date of use inspection of the apartment of this case No. 205 days. 96.

Therefore, the disposition of this case, based on the premise that the transfer of the apartment of this case constitutes the transfer of two houses by one household, is unlawful, as the plaintiff had already acquired the reconstruction apartment of this case at the time of September 18, 2006, which is the transfer date of the apartment of this case, and the plaintiff's above assertion is with merit.

3. Conclusion

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