[2] The case holding that in a case where Gap corporation was designated and publicly announced as an urban environment improvement zone under the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, and Gap corporation received an application for authorization for implementation of the urban environment improvement project in Mapo-gu District 1 on December 22, 2006 on May 25, 2007, and Eul corporation was granted an authorization for project implementation on May 25, 2007, and Eul, who was holding land in the joint zone 1, received a balance payment on December 7, 2006 and reported and paid capital gains tax based on the actual transaction price after transferring the land to Gap corporation, but filed a request for correction of the difference between the capital gains tax under the standard market price and the initial paid tax amount on the ground that the transfer of the land was subject to subparagraph 5 of Article 85 of the former Restriction of Special Taxation Act, but the tax authority rejected the request, the judgment below was erroneous in the misapprehension of legal principles as it was not subject to Article 85 subparagraph 5 of the former Restriction of Special Taxation Act

Meanwhile, Article 8(3) and (4) of the Urban Improvement Act provides that an urban environment improvement project may be implemented by an association of owners of a plot of land, etc. or by owners of a plot of land, etc., and the head of a Si/Gun may designate owners of a plot of land, etc. as a project implementer and allow the project implementer to implement a rearrangement project, and Article 28(1) of the same Act provides that where a project implementer intends to implement a rearrangement project, he/she shall submit a written project implementation plan, etc. to the head of a Si/Gun and obtain authorization for project implementation, and Article 38 of the same Act provides that a project implementer may expropriate or use land, goods, or other rights if necessary to implement a rearrangement project. Article 85(7) of the same Act provides that

The text and legislative purport of the above provisions, in particular, since the transferor recognizes the right to expropriate the real estate to the project implementer under the Urban Improvement Act, even if the transferor transfers the real estate to the project implementer, the transfer value and acquisition value are bound to be restricted by the standard market price, so the legislative purpose of the special taxation provisions in this case is to ease the transfer income tax burden and promote the smooth implementation of the rearrangement project at the same time. In principle, it is impossible to implement the rearrangement project without obtaining the authorization for project implementation under Article 28 of the Urban Improvement Act. If the owner of land, etc. wishes to become the project implementer, unless there are special circumstances such as the designation of the project implementer under Article 8(4) of the Urban Improvement Act, it is difficult to specify the project implementer until the authorization for project implementation is granted, and it is difficult to view that the right to expropriate the land before and after the project implementation is granted to the owner of land, etc., and if the land, etc. is transferred to the owner of the land, etc., it cannot be interpreted that the special purpose of the project implementation authorization can only be applied to the project implementation authorization before and after the project implementation authorization is granted.

According to the reasoning of the judgment of the court below, the plaintiff acquired each of the land in this case located in Seodae-dong, Mapo-gu, Seoul around November 9, 1985 and around March 19, 1988, but decided to sell it to the non-party Medico, Ltd. (hereinafter "non-party Medico, Ltd.") on June 20, 2005, and received the payment of the remaining amount on December 7, 2006, and transferred each of the land in this case (hereinafter "transfer"). The Seoul Mapo-gu was designated as the designated area under Article 104-2 (1) of the former Income Tax Act as the project implementer on June 30, 2005, and the plaintiff was not designated and publicly notified as the urban environment improvement district under the Urban Environment Improvement Act as the urban environment rearrangement project implementer on March 13, 206, and the plaintiff was not designated and publicly notified as the transfer of the land in this case's urban environment improvement project implementer on the ground that the land in this case was not subject to the urban environment improvement project implementer.

Examining these facts in light of the legal principles as seen earlier, although the non-party company was preparing for an urban environment rearrangement project as the owner of land, etc. at the time of the transfer of this case, the transfer of this case was not subject to the special taxation provisions of this case since it was before receiving the project implementation authorization. However, the court below held that the transfer of this case is unlawful on the ground that Article 28 of the Urban Improvement Act is able to be recognized as the project implementer even before receiving the project implementation authorization, and that the non-party company demanded the acquisition of land ownership for the project implementation authorization before receiving the project implementation authorization, and that the transfer of this case is subject to the special taxation provisions of this case after the fact that the non-party company was actually receiving the project implementation authorization, etc.

The ground of appeal pointing this out is with merit.

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Chang-soo (Presiding Justice)