[양도소득세등부과처분취소][공1989.6.1.(849),773]
Article 3-3(5) of the former Regulation of Tax Reduction and Exemption Act (Act No. 3017 of Dec. 29, 197), procedural requirements for exemption from capital gains tax pursuant to Article 3-3(5) of the same Act
To be exempted from the transfer income tax under the provisions of Article 21 of the former Regulation of Tax Reduction and Exemption Act (Act No. 3017 of Dec. 29, 197), the Korea National Housing Corporation or the land transferee designated as the executor of the relevant collective housing district development project under the provisions of Article 21 of the Housing Construction Promotion Act shall apply for the exemption within the period as provided in Article 2-4 (3) of the Enforcement Decree of the same Act (Presidential Decree No. 9232 of Dec. 30, 1978) and if the transferee fails to apply for the exemption within the period
Article 3-3(5) of the former Regulation of Tax Reduction and Exemption Act (Act No. 3017 of Dec. 29, 197), Article 2-4(3) of the former Enforcement Decree of the Regulation of Tax Reduction and Exemption Act (Presidential Decree No. 9232 of Dec. 30, 1978)
Supreme Court Decision 87Nu722 Decided October 28, 1987
Plaintiff
the director of the tax office
Seoul High Court Decision 88Gu4241 delivered on July 6, 1988
The appeal is dismissed.
The costs of appeal are assessed against the plaintiff.
The grounds of appeal No. 1 are examined.
According to Article 3-3(5) of the former Regulation of Tax Reduction and Exemption Act (Act No. 3017, Dec. 19, 197) and Article 2-4(3) of the Enforcement Decree of the same Act (Presidential Decree No. 9232, Dec. 30, 1978) which was enforced at the time of the transfer of the land of this case, the transferee of the land designated as the Korea National Housing Corporation or the implementer of the relevant collective housing organization under Article 21 of the Housing Construction Promotion Act shall file an application for exemption within the period stipulated in Article 2-4(3) of the Enforcement Decree of the same Act, and if he fails to file an application for exemption within the said period, the transfer income tax shall not be exempted (Supreme Court Decision 87Nu23, Oct. 28, 1987; Supreme Court Decision 87Nu722, Mar. 8, 198).
The grounds of appeal Nos. 2 and 3 are examined.
According to the facts established by the court below, the plaintiff transferred the land of this case to the non-party same-sex Housing Development Co., Ltd., and as a result, acquired the share of the 20-year apartment house built by the above non-party company on the land and the share of the land attached to that apartment. This constitutes a transfer of transfer income under Article 4 (1) 3 of the Income Tax Act, and the other taxpayer is exempted from tax in such a case, the tax disposition of this case imposed and notified lawfully cannot be deemed unlawful. The arguments are groundless.
Therefore, the appeal is dismissed and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.
Justices Park Yong-dong (Presiding Justice)