Seoul Administrative Court 2010Gudan8686 ( November 09, 2010)

Cho High Court Decision 2009No4144 (No. 24, 2010)

Capital gains tax shall not be reduced or exempted only where authorization to implement an urban environment improvement project is obtained.

At the time of transferring real estate, the buyer is not eligible for the reduction or exemption of capital gains tax on the transfer of real estate because the buyer had obtained authorization for urban environment rearrangement

Article 77 of the Restriction of Special Taxation Act

2010Nu41897 Revocation of Disposition rejecting capital gains tax rectification

leAA

○ Head of tax office

Seoul Administrative Court Decision 2010Gudan8686 decided November 9, 2010

April 28, 2011

June 2, 2011

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance shall be revoked. The defendant's rejection disposition against the plaintiff on September 18, 2009 against the plaintiff shall be revoked.

1. Details of the disposition;

A. On December 18, 1995, the Plaintiff acquired a house of 39.67 square meters on the 00 ○○○○○-dong 68-2 large 50.1 square meters on its ground and a house of 39.67 square meters on its ground (hereinafter referred to as “the instant real estate by combining land and buildings”), and transferred it to Nonparty AAAwon Co., Ltd (hereinafter referred to as “the instant transfer”) around May 31, 2007 (hereinafter referred to as “the instant transfer”).

B. On July 27, 2007, the Plaintiff declared and paid capital gains tax of KRW 102,985,470 (tax base amount 350,356,391) calculated based on the actual transaction price of the instant real estate to the Defendant on July 27, 2007.

C. On August 11, 2009, the Plaintiff filed a request with the Defendant for correction of 10% reduction or exemption of capital gains tax on the ground that the Plaintiff may reduce or exempt capital gains tax pursuant to Article 77 of the former Restriction of Special Taxation Act (amended by Act No. 8827 of Dec. 31, 2007; hereinafter the same shall apply) since the Plaintiff transferred the instant real estate located in the rearrangement zone under the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 8785 of Dec. 21, 2007; hereinafter referred to as the “Urban Improvement Act”).

D. Accordingly, on September 18, 2009, the Defendant rendered the instant disposition rejecting the Plaintiff’s claim for correction on the ground that the Plaintiff’s transfer of the instant real estate to Nonparty Company was not designated as the implementer of the urban environment rearrangement project and was not subject to the provisions of the instant special taxation.

[Reasons for Recognition] Facts without dispute, Gap evidence 1-1, 2, Gap evidence 2, Gap evidence 3-1, 2, Gap evidence 4, Eul evidence 1-3, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. Summary of the plaintiff's assertion

The project implementer before obtaining the authorization for project implementation under the Urban Improvement Act can be deemed a project implementer under the special provisions of this case, and even if the non-party company, the implementer of the urban environment rearrangement project under the Urban Improvement Act, has applied the special provisions of this case to the Plaintiff who transferred the real estate located in the urban environment rearrangement zone before receiving the authorization for project implementation, the disposition of this case

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

(1) On November 22, 1979, the instant real estate was designated as an urban environmental improvement zone for ○○○○○-dong 92,00,000 square meters for 57,124 square meters, which belongs to the instant real estate.

(2) On December 24, 2007, the non-party company that acquired the ownership of land, etc. in the above urban environmental improvement zone, such as the ownership of the instant real estate, for the purpose of implementing an urban environment improvement project within the above urban environmental improvement zone, proposed to designate the area including the above real estate as the urban environmental improvement zone in ○○ District No. 12-16 of the above urban environmental improvement zone (hereinafter referred to as the "urban environmental improvement zone in this case"). On November 13, 2008, the non-party company was designated as the urban environmental improvement zone in 008-409, 000,000,000 ○○○○ 92 Dong 92,225 square meters as the instant urban environmental improvement zone.

(3) From December 1, 2008 to February 23, 2009, the environmental impact assessment, traffic impact assessment, and the surface survey of cultural properties related to the urban environment rearrangement project of this case were completed, and the non-party company applied for authorization to implement the said urban environment rearrangement project to the head of ○○○○○ on March 17, 2009. The head of ○○○○○○○ Office approved the implementation of the said project on May 22, 2008 and publicly announced as ○○○○○-27 publicly announced.

[Ground of recognition] Facts without dispute, Gap evidence 1-1, 2-2, Gap evidence 2, Gap evidence 3-1, 2, Gap evidence 4, Eul evidence 1-4, and the purport of the whole pleadings

D. Determination

(1) According to the instant special taxation provisions, the tax amount equivalent to 10/100 of the transfer income tax shall be reduced or exempted for the income accruing from the transfer of land, etc. in the rearrangement zone under the Urban Improvement Act, which was acquired two years retroactively from the transfer date, etc. to the project implementer before December 31, 2009. However, the special taxation provisions, including the aforementioned special taxation provisions, do not have any separate definition provisions for the project implementer, but Article 2 subparagraph 8 of the Urban Improvement Act provides that the project implementer refers to the person who implements the rearrangement project, and does not explicitly stipulate that only the project implementer who has obtained authorization, is the project implementer.

Therefore, it is a problem whether the project implementer under the special taxation provisions of this case means only the project implementer who has obtained authorization for project implementation under the Urban Improvement Act or the project implementer who has not obtained authorization for project implementation.

(2) Article 8(3) and (4) of the Urban Improvement Act provides that an urban environment improvement project may be implemented by an association of owners of land, etc. or by owners of land, etc., and the head of a Si/Gun may designate the owners of land, etc. as a project implementer if there are certain reasons. Article 28(1) of the same Act provides that a project implementer intends to implement an improvement project, he/she shall submit the project implementation plan, etc. to the head of a Si/Gun and obtain authorization for project implementation. Article 38 of the same Act provides that a project implementer may expropriate or use land, goods, or other rights if necessary to implement an improvement project. Article 85 Subparag. 7 of the same Act provides that a person who implements an improvement project without authorization for project implementation shall be punished by imprisonment for not more

The text and purport of the above provisions, especially the Act on the Maintenance of Urban Areas and Dwelling Conditions for Residents, recognize the project implementer’s right to expropriate real estate, and even if the transferor transfers the real estate to the project implementer, the transfer value and acquisition value are bound to be restricted by the standard market price. Therefore, the legislative intent of the special taxation provisions in this case is to ease the transfer income tax burden and promote the smooth implementation of the rearrangement project at the same time, and it is impossible to implement the rearrangement project without obtaining an authorization for project implementation under Article 28 of the Act. Where the owner of land, etc. wishes to become the project implementer, unless there are special circumstances such as the designation of the project implementer under Article 8(4) of the Act on the Maintenance of Urban Areas and Dwelling Conditions for Residents, it is difficult to specify the project implementer until the authorization for project implementation is granted, and it is difficult to view that the right to expropriate the land owner, etc. is granted the authorization for project implementation before and after the transfer of the real estate to the project implementer, and it is difficult to interpret the Act on the Maintenance of Urban Areas and Dwelling Conditions for Residents.

5.26.See, e.g., Supreme Court Decision 2009Du14088, supra)

(3) As to the instant case, the Plaintiff acquired the instant real estate on December 18, 1995 and transferred the instant real estate to the non-party company on or around May 31, 2007. The Plaintiff: (a) was designated and announced as the urban environment improvement zone in this case under the Urban Improvement Act on November 13, 2008; (b) the non-party company applied for authorization to implement the urban environment improvement project in ○○ City on March 17, 2009; and (c) the head of the ○○○○○ Office applied for authorization to implement the urban environment improvement zone in which the non-party company was the project implementer on May 22, 2005; (d) the Plaintiff filed a report and payment of transfer income tax under the Act on Special Taxation, but requested the reduction or exemption of transfer income tax pursuant to the instant special taxation provisions, but the Defendant did not request the correction of the land environment improvement project in this case as the Plaintiff did not designate the non-party company as the project implementer.

Examining these facts in light of the legal principles as seen earlier, although the non-party company was preparing for the urban environment rearrangement project as the owner of land, etc. at the time of the transfer of this case, the transfer of this case is not subject to the special taxation provisions of this case.

(4) Therefore, the Defendant’s disposition of this case is lawful, and the Plaintiff’s assertion based on a different premise is without merit.

3. Conclusion

Therefore, the plaintiff's claim shall be dismissed as it is without merit, and the judgment of the court of first instance shall be just and it shall be dismissed as it is so decided as per Disposition.