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

The Defendant’s disposition of imposition of KRW 18,947,810 on August 10, 2004 against the Plaintiff was revoked.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

가. ◯◯3구역주택재개발조합은 1998. 6. 10. ◯◯시 ◯◯구 ◯◯동 000 일대의 토지 22,593㎡ 지상에 454세대의 아파트를 건설하는 주택재개발사업을 시행할 목적으로 설립되어 2001. 10. 12. 관할관청으로부터 관리처분계획인가를 받았다.

나. 원고는 1978. 3. 17. ◯◯시 ◯◯구 ◯◯동 335-221 도로 91㎡를 취득하였는데 위 도로가 위 재개발조합이 시행하는 주택재개발사업의 사업부지에 편입됨으로써 위 재개발조합의 조합원이 되었다.

다. 원고는 조합원 자격으로 2001. 12. 3. 위 재개발조합과 ◯◯시 ◯◯구 ◯◯동 000 일대 ◯◯◯◯◯◯ 아파트 000동 0000호(이하 이 사건 아파트라고 한다)를 공급받기로 하는 아파트분양계약을 체결하였다.

라. 한편 위 재개발조합은 2001. 10. 26. ◯◯구로부터 입주자모집공고 승인을 받아 2001. 10. 30. 조합원들에게 공급하고 남은 일반공급분 000세대 및 부대복리시설에 대하여 입주자 모집공고를 하였고, 2001. 11. 5.부터 같은 달 10.까지 청약예금의 가입등 일정한 가격을 갖춘 신청인들로부터 청약을 받아 그 무렵 당첨자를 결정함으로써 매매계약체결과 계약금을 납부받았다.

마. 위 재개발조합은 2003. 12. 17. ◯◯구로부터 위 주택재개발사업에 대한 준공인가를 받았다.

F. On April 23, 2004, the Plaintiff transferred the instant apartment to △△△△△△△△△ on KRW 280,000,000, and on April 30, 2004, the Plaintiff filed an application for reduction of tax amount equivalent to 100/100 of transfer income tax pursuant to Article 99-3 of the former Restriction of Special Taxation Act (amended by Act No. 6762 of Dec. 11, 2002; hereinafter the same shall apply) by filing a preliminary return of transfer income tax base following the transfer of the instant apartment.

G. Accordingly, the Defendant issued the instant disposition on August 10, 2004 against the Plaintiff on the ground that the instant apartment was acquired by the Plaintiff as a member of the Housing Redevelopment Association, not acquired from the housing construction proprietor, and that the instant apartment was approved on December 17, 2003 after the new house acquisition period (from May 23, 2001 to June 30, 2003) was completed and approved for use, and thus, it does not fall under the subject of the special taxation of capital gains tax provided for in Article 99-3 of the former Act, on August 10, 2004, on the ground that the Plaintiff did not fall under the subject of the special taxation of capital gains tax belonging to the year 2004.

[Ground of Recognition] Facts without dispute, Gap evidence 1-1, Gap evidence 2, Gap evidence 3-1, 2, Gap evidence 4-8, Eul evidence 1, and the purport of the whole pleadings

2. Whether the disposition is lawful;

(a) Related Acts and subordinate statutes;

Gu Act

Article 99 (Special Taxation for Transfer Income Tax on Purchasers of Newly-Built Houses)

(1) With respect to the income accruing from transfer of a newly-built house (including the land attached to the same house, which is less than twice the total floor area of the building concerned; hereafter in this Article the same shall apply) falling under any of the following subparagraphs by a resident (excluding a housing construction business operator) within five years from the date of its acquisition, the tax amount equivalent to 100/100 of the transfer income tax shall be reduced or exempted, and where the relevant newly-built house is transferred after the lapse of five years from the date of its acquisition, the transfer income accruing for five years from the date of its acquisition shall be subtracted from his income amount subject to the transfer income tax: Provided, That this shall not apply to

1. In cases of newly-built house acquired from a housing developer:

A newly-built house acquired by a person who first concludes a sales contract and pays a down payment with a housing constructor during the period from May 23, 2001 to June 30, 2003 (hereafter in this Article, referred to as the “newly-built house”) (including such houses as determined by the Presidential Decree, which are acquired through a housing association under the Housing Construction Promotion Act or an redevelopment association under the Urban Redevelopment Act): Provided, That a house which has been occupied as of the date of a sales contract, or has

2. Where a newly-built house (including a house acquired by a housing association under the Housing Construction Promotion Act or a member as prescribed by the Presidential Decree through an redevelopment association under the Urban Redevelopment Act);

A newly-built house that has obtained approval or inspection for use (including approval for temporary use) within the newly-built house acquisition period

former Restriction of Special Taxation Act (amended by Act No. 6762 of Dec. 11, 200)

Addenda

Article 29 (Transition Measures for Special Taxation of Transfer Income Tax on Purchasers of Newly-Built Houses)

(1) In case where a newly-built house for which a sales contract was first concluded with a housing constructor in accordance with the previous provisions of Article 9 (1) or 99-3 (1) was made before this Act enters into force, or a newly-built house for which an approval for use or inspection for use (including a approval for temporary use) was obtained is transferred after this Act enters into force, the previous provisions shall apply to the calculation of the income amount subject to the abatement or exemption of transfer income tax and the object of taxation of transfer income tax, notwithstanding the amended provisions of Article 99 (1) or 99-3 (1). In this case

Enforcement Decree of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 17829, Dec. 30, 2002; hereinafter referred to as the "former Enforcement Decree").

Article 99 (Special Taxation for Transfer Income Tax on Purchasers of Newly-Built Houses)

(3) The term “houses prescribed by the Presidential Decree” in Article 99-3 (1) 1 of the Act means the houses falling under any of the following subparagraphs:

1. A house remaining after a housing association under the Housing Construction Promotion Act or an redevelopment cooperative under the Urban Redevelopment Act (hereafter in this Article, referred to as the “housing association, etc.”) supplies to its members (hereafter in this Article, referred to as the “ residual house”), which is acquired by a person who concludes a direct sales contract and pays the down payment with a housing association, etc. within the new house acquisition period under Article 9-3 (1) 1 of the Act (hereafter in this Article

2. A house acquired by a member (referring to a member as of the date of authorization of a management and disposal plan under Article 34 of the Urban Redevelopment Act, or the date of approval of a business plan under Article 33 of the Housing Construction Promotion Act; hereafter in this subparagraph, the same shall apply) from a housing association, etc., for which an approval for use or inspection for use is obtained at the expiration of the new house acquisition period: Provided, That it shall be limited to cases where a housing association, etc. has received the down payment by directly concluding a sales contract for the remaining

B. Determination

If a member of the redevelopment association acquires a house through the redevelopment association because the house constitutes a newly-built house built by himself, and if the house is transferred, the member may be exempted from the transfer income tax only if he has obtained the approval for use or inspection for use from May 23, 2001 to June 30, 2003 under Article 99-3 (1) 2 of the former Act, and in the case of a newly-built house acquired from a housing developer, if he first concludes a sales contract and pays the down payment within the newly-built house acquisition period under Article 99-2 (1) 1 of the former Act, even if he received the approval for use or inspection after the newly-built house acquisition period, the transfer income tax may be reduced

However, Article 99-3 (1) 1 of the former Act provides that a house acquired through a redevelopment association and prescribed by the Presidential Decree falls under a newly-built house under Article 99-3 (1) 1 of the former Act. Article 99-3 (3) 2 of the former Enforcement Decree setting the scope of the above house provides that if a redevelopment association has concluded a sales contract and received down payment with a person other than the union members within the newly-built house acquisition period for the remaining house, the house acquired by a redevelopment association member after the expiration of the new house acquisition period falls under a "house prescribed by the Presidential Decree, which has been acquired through a redevelopment association under the Urban Redevelopment Act" under Article 99-3 (1) 1 of the former Act for the remaining house after the expiration of the new house acquisition period, if the redevelopment association had concluded a sales contract and received down payment with a person other than the union members within the newly-built house acquisition period, it can be said that a supplier's remaining house after the expiration of the new house acquisition period or use inspection from the union members.

According to the above facts, the above redevelopment cooperative is a redevelopment cooperative under the Urban Redevelopment Act, and the plaintiff acquired a newly-built house through the redevelopment cooperative as a member of the redevelopment cooperative, and the above redevelopment cooperative has concluded a sales contract with a person other than the union members for the remaining house remaining after selling it to the union members within the newly-built house acquisition period and received the down payment. Thus, even if the above house has undergone a completion inspection on December 17, 2003 after the newly-built house acquisition period, it shall be deemed as a newly-built house under Article 99-3 (1) 1 of the former Enforcement Decree under Article 99-3 (3) 2 of the former Enforcement Decree, so long as the plaintiff transfers the apartment house of this case within five years from the date of its acquisition, the entire transfer income tax shall be reduced or exempted pursuant to the main sentence of Article 9-3

Therefore, the defendant's disposition of this case which imposed capital gains tax on the ground that the plaintiff is not eligible for reduction or exemption under Article 99-3 (1) of the former Act is unlawful.

3. Conclusion

Therefore, the plaintiff's claim is justified, and the judgment of the court of first instance is just, and the defendant's appeal is dismissed as it is without merit.

[Supreme Court Decision 2006Du15738 ( December 22, 2006)]

The costs of appeal are assessed against the defendant.

As a result of examining all of the records of this case, the judgment of the court below, and the grounds of appeal, it is clear that the above grounds for non-trial conduct constitute grounds for appeal, the appeal shall be filed. It is so decided as per Disposition by the assent of all participating Justices.