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

A. On June 9, 1998, the Plaintiff acquired and owned a crob apartment (Dong lake omitted) located in Yeongdeungpo-gu, Yeongdeungpo-gu, Seoul (hereinafter “instant apartment subject to reconstruction”). On September 9, 1999, the project plan was approved pursuant to Article 33 of the former Housing Construction Promotion Act (wholly amended by Act No. 6916 of May 29, 2003), and thereafter, the reconstruction was implemented, and the relocation and removal was completed around 2001. On that ground, the Plaintiff newly constructed an apartment under the name of Seosan-si, Yeongdeungpo-gu, Seoul and completed construction on August 23, 2004, and the Plaintiff was selected as a member of the housing reconstruction project and completed the reconstruction of the instant apartment under the name of the Plaintiff on September 14, 2004.

B. On April 23, 2001, the time when the relocation and removal of the apartment subject to reconstruction of the instant case occurred, the Plaintiff acquired, and owned and resided in not less than 1208, Seongdong-gu, Seongdong-gu, Seoul, not less than 1208 but not more than 3 years, and transferred the instant apartment to the Nonparty on May 2, 2005. The Plaintiff did not own any other house except the instant reconstruction apartment at the time of the said transfer.

C. The Plaintiff, even after the completion of the instant reconstruction apartment, was residing in the instant issues apartment, transferred it, and thereafter, on May 6, 2005, the Plaintiff moved in from the Seongdong-gu Seoul Metropolitan Government heading 3 to 1331 101 1406, and did not move in as the reconstruction apartment of this case.

D. The acquisition value of the instant at issue apartment was KRW 216,00,000, and the transfer value was KRW 309,500,000, but the Plaintiff did not report and pay the transfer income tax even after the transfer of the instant at issue apartment on the ground that the transfer of the instant at issue apartment constitutes one house for one household.

E. On May 2, 2006, the Defendant issued the instant disposition imposing KRW 15,970,860 on the Plaintiff as transfer income tax for the year 2005 on the ground that the transfer of the instant apartment does not constitute one house for one household.

[Reasons for Recognition] Unsatisfy, Gap evidence Nos. 1 through 4, 8, Eul evidence No. 1, the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The parties' assertion

The Plaintiff: (a) the Plaintiff: (b) owned and occupied the instant apartment for not less than three years, and transferred the instant apartment at the time of the transfer of the instant apartment; (c) however, the time of the transfer of the instant apartment, but (d) transferred the instant apartment on August 23, 2004 within one year from the date of the acquisition of the instant apartment, which constitutes a temporary two house, and thus constitutes non-taxation.

The defendant : The reconstruction apartment of this case is only an extension of the apartment subject to reconstruction of this case, and it cannot be viewed as separate from the previous apartment, so the time of acquiring the reconstruction apartment of this case shall not be August 23, 2004, but shall be deemed as June 9, 1998, which is the time of acquiring the reconstruction apartment of this case. Therefore, the plaintiff does not constitute a temporary two house owner.

B. Relevant statutes

It is as shown in the attached Form.

(c) Markets:

Article 89 of the former Income Tax Act (amended by Act No. 7837 of Dec. 31, 2005; hereinafter the same) provides for non-taxation income from such transfer only in cases where one household possesses one house in the Republic of Korea as of the date of transfer, and Article 154(1) of the Enforcement Decree of the same Act provides that Article 155(1) of the Enforcement Decree of the same Act provides that where one household who owns one house in the Republic of Korea temporarily acquires two houses by acquiring another house before transferring the house, the former house shall be regarded as one house for one household within one year from the date of acquiring another house (hereinafter referred to as "the above provision of Article 155(1) of the same Act") and the above special provision of temporary two houses shall be construed as one house for the purpose of ensuring the safety of residential life and the freedom of residence and relocation, and the purpose of the special provision is not to impose capital gains tax on the transfer of another house if one household who owns one house in the Republic of Korea temporarily acquires another house within two years from the date of transfer.

On the other hand, a member of a reconstruction association under the former Housing Construction Promotion Act has the right to purchase a new house or site and to build a new building and appurtenant or welfare facility to be acquired in accordance with the business plan (the status of being selected as a tenant) in the association constitutes a "right to acquire real estate" under Article 94 (1) 2 (a) of the former Income Tax Act until the ownership of the house, etc. is acquired. In this case, the time of acquisition of the selected status as an occupant is the time of approval of the business plan under Article 33 of the former Housing Construction Promotion Act.

In this case, the plaintiff acquired and possessed the apartment subject to reconstruction of this case on June 9, 1998, but the above apartment was converted into the status of being selected as occupant on September 9, 1999, and since the above status of being selected as occupant was merely the right to acquire real estate, it cannot be viewed as a house, and it cannot be viewed that the plaintiff acquired the apartment subject to reconstruction of this case on April 23, 2001 (the issue apartment of this case was acquired at the time of de facto relocation and removal). The reconstruction apartment of this case was completed on August 23, 2004, and only became a holder of two houses. However, since the reconstruction apartment of this case was implemented on September 2, 2009, the apartment of this case was already acquired after the reconstruction of this case, it can be viewed that the apartment of this case was temporarily owned after the reconstruction of this case's apartment of this case, and it can be viewed that the apartment of this case was transferred within 1 year prior to the reconstruction of this case's apartment of this case.

On the other hand, where one household which has owned two houses in Korea has destroyed one house, newly constructed a new house in that place, and thereafter transferred another house within the period under Article 155 (1) of the Enforcement Decree of the Income Tax Act from that date, the relevant household is not deemed to acquire a house separate from the existing one, and thus, it cannot be deemed to constitute “where one household who has one house in Korea acquires another house before transferring that house temporarily becomes two houses by acquiring it” (see Supreme Court Decision 98Du13508, Dec. 8, 1998). However, in the application of the special provisions on temporary two houses, the reason that the existing house and new house are not deemed to be separate from the previous house is the result that respected the legislative intent of the special provisions on temporary two houses, and it is difficult to view that the aforementioned special provisions on one of the two houses cannot be deemed to have been applied to the case where it is necessary to acquire another house from the beginning as a result of reconstruction as in this case, from the beginning to the new house.

In addition, Article 71 (2) 4 of the former Enforcement Rule of the Income Tax Act (amended by Ordinance of the Ministry of Government Administration and Home Affairs No. 476 of December 31, 2005) provides that where a person who participated in a rearrangement project association member of a housing reconstruction project acquires another house during the implementation period of the housing reconstruction project and resides therein for not less than one year and all members of a household move into a house acquired according to the project plan under the same Act, the period of possession and residence shall not be restricted under Article 154 (1) of the former Enforcement Decree of the Income Tax Act. In the case of the plaintiff, the plaintiff did not move into the reconstruction apartment of this case acquired according to the project plan, but the above provision does not apply to the case of the reconstruction apartment of this case (three-year possession and two-year residence) under Article 154 (1) of the former Enforcement Decree of the Income Tax Act, if the requirements under Article 71 (2) 4 of the former Enforcement Rule of the Income Tax Act are met, the special provision on the housing of one household shall not apply to the plaintiff.

Therefore, the transfer of the key apartment in this case constitutes the transfer of one house for one household as stipulated in Article 89 subparag. 3 of the former Income Tax Act, Articles 155(1) and 154(1) of the Enforcement Decree of the same Act, which is subject to non-taxation, but the disposition in this case otherwise viewed is unlawful.

3. Conclusion

Therefore, the plaintiff's claim seeking the cancellation of the disposition of this case is reasonable, and it is so decided as per Disposition with the assent of all Justices.

Judges Kim Jong-chul