신축주택취득기간 경과 후 사용승인을 받은 경우에도 감면대상에 해당됨[국패]
the approval for use after the expiration of the new house acquisition period shall be subject to reduction and exemption.
Where a housing association, etc. has received a down payment by directly concluding a sales contract for the remaining house within the newly-built house acquisition period with a person other than its member, it is also eligible to receive approval for use or inspection for use after the expiration of the newly-built house acquisition period. In the case of a house acquired from a constructor, whether it is a high-class house exempt from reduction or exemption shall be determined as at the time the remaining apartment
Article 99-3 of the former Restriction of Special Taxation Act
Article 99 of the former Restriction of Special Taxation Act
The appeal is dismissed.
The costs of appeal are assessed against the defendant.
The grounds of appeal are examined.
1. Regarding ground of appeal No. 1
Article 9-3 (1) of the former Restriction of Special Taxation Act (amended by Act No. 6762 of Dec. 11, 2002; hereinafter referred to as the "former Act") stipulates that the income accruing from the transfer of a newly-built house falling under any of the following subparagraphs by a resident within five years from the date of its acquisition shall be reduced by 100/100: Provided, That the same shall not apply to cases where the relevant newly-built house falls under a high-class house excluded from the object of non-taxation of capital gains tax under subparagraph 3 of Article 89 of the Income Tax Act, the term "cases of newly-built house acquired from a housing construction business operator" in subparagraph 1, the term "period from May 23, 201 to June 30, 203, the term "newly-built house acquisition period" in Article 99-3 (1) of the Enforcement Decree of the former Act shall be included in the newly-built house acquisition contract with a housing association under the Housing Construction Promotion Act or the newly-built house under Article 93 of the former Enforcement Decree.
In the same purport, the court below determined that the rebuilding apartment of this case, which the plaintiff acquired as a member of the association of this case, constitutes a newly-built house acquired from a housing developer under Article 99-3 (1) 1 of the former Act, since the remainder apartment remaining after supplying the reconstruction apartment of this case to the association members among the reconstruction apartment of this case was sold in general and paid the down payment from November 27, 2002 to November 29, 2002 within the newly-built house acquisition period, even though the provisional use approval was obtained on October 31, 2003 after the newly-built house acquisition period for the reconstruction apartment of this case, the association of this case is just and acceptable, and there is no violation of law such as misunderstanding legal principles as argued in the Grounds for Appeal.
2. Regarding ground of appeal No. 2
Article 29 (1) of the former Restriction of Special Taxation Act (amended by Act No. 6772 of Dec. 11, 2002 and enforced January 1, 2003) provides that, where a newly-built house, which was newly built by himself, entered into a sales contract for the first time with a housing developer pursuant to Article 9 (1) or 99-3 (1) of the former Restriction of Special Taxation Act prior to the enforcement of this Act, is transferred after the enforcement of this Act, the previous provisions shall apply to the calculation of the income subject to abatement or exemption of transfer income tax and the income subject to taxation of transfer income tax, notwithstanding Article 9 (1) or 99-3 (1) of the former Restriction of Special Taxation Act (amended by Act No. 6772 of Dec. 11, 2002). In this case, the high-class criteria for determining newly-built house, which was newly built by himself, shall apply to the cases falling under Article 99-3 (1) 1 of the former Act and falling under subparagraph 9 of the former Enforcement Decree of the newly-built Housing Act.
In determining whether the apartment of this case is a high-class house with the exclusion of capital gains tax reduction or exemption, the court below is just in holding that the association of this case should be based on the time of selling the remaining apartment remaining after supplying to the association members among the reconstruction apartment of this case to persons other than the association members, and cannot be based on the date of receiving approval or inspection for use of the reconstruction apartment of this case. There is no error in the misapprehension of legal principles as to the interpretation of Article 29 (1) of the Addenda of the Restriction of Special Taxation Act (amended by Act No. 6762 of Dec. 11, 2002 and enforced from January 1, 2003) as alleged in the ground of appeal.
3. Conclusion
Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.