[양도소득세부과처분무효확인][공1993.3.1.(939),745]
Whether a disposition of capital gains tax on the right to sell apartment units, which is considered as one house for one household, subject to non-taxation of capital gains tax, is void automatically (negative)
Article 5 subparagraph 6 (i) of the former Income Tax Act (amended by Act No. 4019 of Dec. 26, 198) and Article 15 (1) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 12509 of Aug. 25, 1988) impose capital gains tax on the right to sell apartment, which is regarded as one house for one household and regarded as one house subject to non-taxation from capital gains tax. However, although such errors are serious, they cannot be deemed as objectively obvious even if they are serious, they cannot be deemed as invalid as a matter of course.
Article 5 subparagraph 6 (i) of the former Income Tax Act (amended by Act No. 4019 of Dec. 26, 198), Article 15 (1) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 12509 of Aug. 25, 198), Article 19 of the Administrative Litigation Act
[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Lee Dong-young et al., Counsel for plaintiff-appellant)
[Judgment of the court below]
Head of Guro Tax Office
Seoul High Court Decision 90Gu8482 delivered on September 10, 1991
The appeal is dismissed.
The costs of appeal are assessed against the plaintiff.
We examine the grounds of appeal.
According to the reasoning of the judgment below, the court below acknowledged the fact that one unit of apartment house was owned on the site owned by Seoul Special Metropolitan City and residing together with his family members living together for not less than one year, and that on July 30, 1986, the execution of an urban redevelopment project under the Urban Redevelopment Act was publicly announced, and thereafter, the above apartment house was transferred to the non-party on June 28, 198, before the completion of construction, in accordance with the management and disposal plan of the above redevelopment association, after acquiring the right to sell one unit of apartment house as stated in the judgment of the court below, and that the above apartment house was transferred to the non-party in accordance with the management and disposal plan authorized under the Urban Redevelopment Act, such as Article 49 of the Urban Redevelopment Act, Article 62 of the Land Readjustment and Rearrangement Projects Act, etc., and the above apartment house was acquired the ownership of the building facility on the day following the public announcement of the sale after the completion of construction, and even if a land substitution disposition was publicly announced, it cannot be viewed that the above land was unlawful under Article 15818 of the Act.
Therefore, the appeal shall be dismissed, and all costs of appeal shall be assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.