Whether the transfer of sale right constitutes two houses for one household temporarily at the time of the approval date of the project plan;

Since the right to sell in lots meets the requirements for residence for three or more years as of the date of acquisition of the project plan, and for two or more years during the period of possession, the transfer of the Plaintiff’s right to sell in lots constitutes two houses for one household on a temporary basis, and thus is exempt from taxation. Therefore, the Defendant’s disposition of this case made in other whole shall be deemed unlawful.

Article 155 of the Enforcement Decree of the Income Tax Act

Article 89 of the Income Tax Act

1. The Defendant’s disposition of imposition of capital gains tax of KRW 38,361,60 on May 2, 2005 against the Plaintiff shall be revoked.

2. The costs of lawsuit shall be borne by the defendant.

* Cases of winning the country in the second instance

The date of disposition, other than May 1, 2005, which appears to be a clerical error, is the same as the Disposition.

1. Circumstances of dispositions;

A. On September 15, 1983, the plaintiff acquired ○○○ apartment unit 8, 00, 00, 000 ○○ apartment unit 8,000, and resided in 4 years and two months from August 20, 1983 to November 7, 1987, and the reconstruction project was implemented after the formation of ○○○ apartment unit 8,000,000,000 ○○ apartment unit 8,000 ○○ apartment unit 8,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000 won.

B. Meanwhile, on September 7, 1997, the Plaintiff acquired ○○○ apartment ○○○○ apartment ○○○○○○ apartment ○○○○○○○ apartment ○○○○○ apartment ○○○○○ apartment ○○○○○ apartment ○○ (hereinafter referred to as “○○ apartment ○○○○ apartment ○○○○○,”) and donated the apartment ○○○ on May 2, 2001 to the mother ○○○ apartment ○○. On August 8, 2002, the Plaintiff’s wife and ○○○○ apartment ○○○ apartment ○○○○○ apartment ○○○○ (hereinafter referred to as “○○ apartment ○○○”).

C. After that, on April 17, 2003, the plaintiff transferred the right to sell the reconstruction apartment of this case (hereinafter referred to as the "right to sell the reconstruction apartment of this case") at KRW 320 million (hereinafter referred to as the "transfer of this case"), and on May 13, 2003, the plaintiff reported and paid capital gains tax of KRW 17,650,890 to the defendant along with the preliminary return of tax base of capital gains tax, which is based on the actual transaction value of the right to sell the reconstruction apartment of this case at KRW 230 million.

D. Accordingly, at the time of the transfer of this case, the Defendant confirmed that the actual transaction price of the sale right of this case was less than KRW 320 million,00,000,000,000, and additionally imposed and notified capital gains tax of KRW 38,361,60 for the year 2003, May 2, 2005.

[Ground for Recognition] : Facts without dispute, Gap evidence 1, and Eul evidence 1]

2. Whether the instant disposition is lawful

A. The parties' assertion

(1) Article 155 (16) of the former Enforcement Decree of the Income Tax Act (amended by the Presidential Decree No. 18044, Jun. 30, 2003; hereinafter the "Enforcement Decree") provides that a reconstruction association's member under the former Housing Construction Promotion Act who owns an existing house corresponding to one house of the first household shall be entitled to acquire a right to sell real estate, notwithstanding the fact that the right to sell ownership is a right to acquire a house through the association, the transfer of the right to sell ownership shall be deemed as one house for one household. For the plaintiff to become a member under the above provision, the reconstruction association did not own a house other than the reconstruction apartment at the time of the above approval of the project plan (the time of acquisition of the right to purchase ownership) and the transfer date of this case. The plaintiff owned an apartment house other than the reconstruction apartment at the time of the above approval of the project plan at the time of the transfer date, and thus, the plaintiff does not meet the requirements of the approval of the project plan of this case at the time of the transfer date of the apartment house and the reconstruction project at one five days (1).

(2) Accordingly, Article 155 (16) of the Enforcement Decree of the Housing Construction Act applies to a case where a member of a reconstruction project association who owns an existing house falls under one house for one household as of the date of approval of the project plan for the housing construction project, regardless of whether it falls under one house for one household, and does not own another house at the time of "transfer of the right to sell". The plaintiff was a member of the reconstruction apartment association of this case, which is an existing house as of the date of approval of the project plan for the housing reconstruction project for the reconstruction apartment of this case. The plaintiff's wife acquired the apartment house of Yeongdeungpo-gu ( August 8, 2002) before transferring the right to sell this case before transferring the right to sell this case, within one year from the date of transfer of the right to sell the apartment house of Yeongdeungpo-gu ( April 17, 2003), and thus, it constitutes a case of two houses for one household household under Article 155 (1) of the Enforcement Decree of the Housing Construction Act (the plaintiff's mother order was not the same household member as the plaintiff).

(b) Related statutes;

Enforcement Decree of the Act Article 155

Article 89 of the Income Tax Act

C. Determination

(1) Whether the Plaintiff and the deceased were living together or not

First of all, as to whether the Plaintiff was living together with his mother bank order, it is insufficient to recognize it only by the descriptions of the health team, Eul evidence No. 7-1 through No. 4, and there is no other evidence to acknowledge it otherwise. Rather, considering the whole purport of arguments in each statement of evidence No. 6 through No. 10, the court below's order can be acknowledged that the Plaintiff formed a separate household with the Plaintiff in a luminous apartment and maintained his livelihood independently from the Plaintiff, and the Plaintiff's assertion on this premise is without merit.

(2) Whether it constitutes two houses for one household temporarily

(A) Article 89 (3) of the Income Tax Act provides that no transfer income tax shall be imposed on the income accruing from the transfer of one house for one household as prescribed by the Presidential Decree. Article 154 (1) of the Enforcement Decree of the Income Tax Act provides that where one household possesses one house as of the date of transfer, and where the Seoul Special Metropolitan City, etc. has a house as of the date of transfer, the period of possession of the house concerned shall be three years or more and the period of residence shall be two years or more during the period of possession. Article 155 (16) of the Enforcement Decree of the Income Tax Act provides that where a housing reconstruction association member under the Housing Construction Promotion Act transfers the status of being selected as a resident through the association, it shall be deemed as one house for one household under Article 154 (1) of the Enforcement Decree of the Income Tax Act if there is no other house as of the date of transfer, it shall be interpreted as falling under the provisions of Article 154 (1) of the Enforcement Decree of the Income Tax Act.

(6) Article 15(1)5 of the Enforcement Decree of the Housing Act provides that "No more than 1 of the Enforcement Decree of the Housing Act shall be determined as of the date of transfer because the ownership of the housing is calculated as of the 1st anniversary of the date of the acquisition of the housing for the first five years or the date of the acquisition of the housing for the first five years or later" (see, e.g., Supreme Court Decision 97Nu20816, Jul. 10, 198). Article 154(1)5 of the Enforcement Decree of the Housing Act provides that "No more than 15 of the Housing Act shall be determined as of the date of the acquisition of the housing for the first five years or as of the date of the acquisition of the housing for the first five years or the date of the acquisition of the housing for the first five years or later". Article 155(16) of the Enforcement Decree of the Housing Act provides that "No more than 15 of the Enforcement Decree of the Housing Act shall be the date of the acquisition of the housing for the first five years or more.

(C) In the case of this case, although the Plaintiff owned an apartment house at the time of acquiring the right to sell the present case, as seen earlier, the Plaintiff already donated the apartment house to his mother who had a different livelihood before the transfer of the right to sell the present case (the gift tax seems to have been paid). Although his wife was living in Yeongdeungpo-gu at the time of the transfer of the right to sell the present case, the right to sell the present case was transferred within one year from the date of its acquisition, and the right to sell the present case was owned within three years and more than two years during the retention period at the time of the approval of the business plan, which is the acquisition date, and thus, the transfer of the Plaintiff’s right to sell the present case constitutes “two houses for one household on a temporary basis,” and thus, the disposition of this case by the Defendant, which was made in the entire other part, is unlawful.

3. Conclusion

Therefore, the plaintiff's claim of this case seeking the cancellation of the disposition of this case is justified and it is so decided as per Disposition.