Seoul Administrative Court-2012-Gu Group-21614 (2014.05.09)

Transfer of land shares after the completion of authorization for the implementation of a project is a real estate.

Since the approval of change after the completion of the project is effective retroactively, the target of transfer is not the right to acquire real estate, but the subject of special deduction for long-term possession.

2014Nu4841 Revocation of Disposition of Imposing capital gains tax

AA

a) the Director of the Tax Office

Seoul Administrative Court Decision 2012Gudan21614 decided May 9, 2014

September 30, 2014

October 21, 2014

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

On January 2, 2012, 2007, the defendant revoked the imposition of the OOOO(including the OOOO and the additional tax due to the failure to file a report) of capital gains tax for the year 2007 (the plaintiff corrected the "OOOO(s)" of the amount of taxation stated by mistake among the claims claimed in the trial as "OOO(s)").

2. Purport of appeal

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

1. Quotation of judgment of the first instance;

The reasoning for this Court's explanation is as follows: (a) the first line of the first line of the judgment of the court of first instance is "OOOO"; and (b) the part of the judgment on the legitimacy of the disposition is as stated in the reasoning of the judgment of the court of first instance, except for the following: (c) Article 8 (2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act are cited.

2. The part to be mard;

3. Whether the disposition is lawful;

(a) The design and the validity of authorization for the project implementation period; and

The implementer of an urban planning project shall apply for adjudication on acquisition or expropriation of land owned by another person or land necessary for an urban planning project under a private contract within the project implementation period specified in the authorization of the implementation plan of the urban planning project notified at the latest. The authorization of the implementation plan of the urban planning project shall be invalidated unless the procedure for such acquisition is prior to the project implementation period, and the authorization of the implementation plan after the lapse of the implementation plan shall not be retroactively effective because it is a disposition that establishes the authority to implement the urban planning project. However, the authorization of the implementation plan of the urban planning project is different from the initial authorization. Thus, the authorization of the implementation plan of the urban planning project after the lapse of the project implementation period specified in the public notice of the authorization of the implementation plan of the urban planning project shall not be deemed to have the effect as a new authorization if it meets the requirements for the new implementation plan. This is true even if the existing implementation plan has already been abolished and the implementation period has been extended again through the authorization of the implementation plan without the abolition of the existing implementation plan (see, e.g., Supreme Court Decision 2000Du138, Dec. 27, 190000.

B. Whether the subject of transfer is "the right to acquire real estate" or not, the redevelopment project in this case had not been implemented after the original project implementation authorization was completed, and the project implementation period was extended on December 31, 2004 due to the first revision on February 9, 2001, which was extended on December 31, 2004, and the extended project implementation period has expired without any further implementation.

In such a case, both the first project implementation authorization and the first project implementation authorization that can be seen as the first project implementation authorization have lost their validity. Since the Plaintiff transferred the instant land shares to BB on October 15, 2007 after both the original project implementation authorization and the first project implementation authorization have ceased to exist, at the time of the Plaintiff’s transfer of the instant land shares, it shall be deemed that the project implementation authorization and the first project implementation authorization and the subsequent management and disposal plan were all invalidated (as pointed out by the Defendant, the head of Yongsan-gu Office did not change the original project implementation authorization or the first project implementation authorization based on the project implementation authorization (the first project implementation authorization and the first project implementation authorization and the second project implementation plan were invalidated). Moreover, it shall not be deemed that the first project implementation authorization and the second project implementation authorization were invalidated or invalidated by the first project implementation authorization and the second project implementation authorization and the second project implementation authorization based on the plan (the first project implementation authorization and the second project implementation authorization and the second project implementation authorization were invalidated and invalidated.

Therefore, since the subject of transfer by the Plaintiff falls under a "real estate, not a right to acquire real estate," which is subject to the special long-term holding deduction, the Defendant's disposition of this case on different premise is unlawful.

3. Conclusion

Therefore, the plaintiff's claim is justified, and the judgment of the court of first instance with the same conclusion is just, and the defendant's appeal is dismissed. It is so decided as per Disposition.