1. Scope of tax reduction or exemption under Article 3-3 (5) of the former Regulation of Tax Reduction and Exemption Act (Act No. 3017, Dec. 19, 197);

2. Whether the development project operator of an apartment zone is eligible to obtain approval for a project plan under the Housing Construction Promotion Act, or whether he/she is granted tax reduction or exemption;

1. The provisions of Article 3-3(5) of the former Regulation of Tax Reduction and Exemption Act (Act No. 3017, Dec. 19, 1977) apply not only to the case where the land has already been transferred to the person designated as the development project operator of the apartment zone, but also to the case where the land has been first transferred to the person designated as such operator and the transferee thereafter acquired the land until the time when the application for tax reduction and exemption under the above Enforcement Decree (Presidential Decree No. 8844, Feb. 8, 1978; Presidential Decree No. 9232, Dec. 30, 1978) was filed.

2. A landowner holding land in an apartment zone shall be entitled to tax benefits, regardless of whether the project operator has obtained approval of the project plan pursuant to the provisions of the Enforcement Decree of the Housing Construction Promotion Act or not, if he/she supplies the land to a project operator so that the development project operator of the apartment zone may construct a house for ordinary people on such land;

Article 3-3 (5), (7), and (8) of the former Regulation of Tax Reduction and Exemption Act (Act No. 3017 of Dec. 19, 197), Article 2-4 of the former Enforcement Decree of the Regulation of Tax Reduction and Exemption Act (Presidential Decree No. 8844 of Feb. 8, 1978) (Presidential Decree No. 9232 of Dec. 30, 1978)

6. 25 June 25, 1985, 84Nu526 (Gong758, 1060)

Plaintiff 1 and one other

The Director of Gangnam District Office

1. The Defendant’s taxation of KRW 2,405,209, and the defense tax of KRW 262,387, which was imposed by the Plaintiff 1 on September 5, 1982, shall be revoked.

2. The plaintiff 2's lawsuit of this case shall be dismissed.

3. Of the costs of lawsuit, those arising from the plaintiff 1 and the defendant company shall be borne by the defendant, the plaintiff 2 and the defendant company, respectively.

The Defendant’s taxation of KRW 2,405,209, defense tax of KRW 262,387, which was issued against the Plaintiffs on September 5, 1982, shall be revoked.

The costs of lawsuit are assessed against the defendant.

(1) Determination as to Plaintiff 2’s lawsuit

The plaintiffs' legal representative asserted that the defendant imposed capital gains tax of KRW 2,405,209 and KRW 262,387 on September 5, 1982 against the plaintiff 2 and that the disposition is unlawful. Thus, the defendant's joint ownership of the plaintiff 136.9 of the Gangnam-gu Seoul Special Metropolitan City (hereinafter omitted) was transferred to the non-party 2 on June 1, 1978 on the non-party 3 as well as the income tax of KRW 1,405,20, and the defense tax of KRW 262,387, and that the disposition is unlawful. Thus, the plaintiff 1,36.9 of the above disposition of capital gains tax of KRW 20,00,000 for KRW 1,40,000,000, KRW 29,000,000 for KRW 2,000,000,000 for KRW 1,963,00,000.

(2) Determination as to Plaintiff 1’s claim

The plaintiffs' legal representative asserts that the income from the transfer of the land of this case is subject to tax reduction or exemption under the provisions of the Housing Construction Promotion Act. Thus, this case's taxation on the same income should be unlawful and thus revoked. According to Article 3-3 (5) of the former Regulation of Tax Reduction or Exemption Act (amended by Act No. 3017, Dec. 197), the Korea Housing Corporation established pursuant to the provisions of the Korea Housing Corporation Act or the Housing Construction Promotion Act, and Article 21 of the same Enforcement Decree of the Housing Construction Promotion Act, the remaining tax amount of 0. 10% for the income from the transfer of the land of this case to the non-party 5, the non-party 1 and the non-party 2's remaining tax reduction or exemption should be 0. 5% of the income from the above transfer of the land by the non-party 1 and the non-party 5's remaining tax reduction or exemption on the land of this case, the plaintiff 1 and the non-party 2's remaining tax reduction or exemption on the land of this case.

However, the transferee of land shall be subject to the Regulation of Tax Reduction and Exemption Act only when he takes over the land after being designated as a development project operator of the apartment zone. The above provision of the Enforcement Decree of the Act on Regulation of Tax Reduction and Exemption is first applied to the person to whom the said land belongs, and the defendant's assertion that the Regulation of Tax Reduction and Exemption is not applicable to the subsequent designation of a project operator. The above provision of Article 3-3 (5) of the Regulation of Tax Reduction and Exemption provides that the income tax shall be exempted on the income accruing from the transfer of the land within the aggregate housing zone to the development project operator as prescribed by the Presidential Decree, and the above provision of Article 2-4 (1) and (2) of the Enforcement Decree of the Act on Regulation of Tax Reduction and Exemption and the above provision of the Act on Regulation of Tax Reduction and Exemption and Exemption shall be applied to the person to whom the above land belongs (the above provision of Article 2-4 (1) and (2) of the Enforcement Decree of the Act on the Regulation of Tax Reduction and Exemption and the above provision of the Act on the transfer of the land to the transferee.

In the following case, the non-party company may recognize the fact that the above land is sold to Hanyang Housing Co., Ltd. on December 11, 1979 without constructing a house according to the plan on the site in this case, taking into account the health care of the allegation that the tax from the transfer of the above land cannot be reduced or exempted because the transferee of the land did not obtain the approval of the business plan under the provisions of the Enforcement Decree of the Housing Construction Promotion Act, and the testimony and the purport of oral argument of the witness friendly. However, Article 3-3 (7) of the former Regulation of Tax Reduction and Exemption Act provides that "the person who purchased the land under the provisions of paragraphs (5) and (6) shall construct or construct the house on the land under the conditions as prescribed by the Presidential Decree," and Article 3-3 (8) of the same Act provides that "if the purchaser of the housing site under the provisions of paragraphs (5) and (6) fails to perform his duty under the provisions of paragraph (7) above, the government shall collect the tax amount equivalent to the tax amount already exempted under the provisions of the housing construction project operator's, who shall be exempted from the transfer.

Therefore, since the disposition of imposition of the capital gains tax of this case against the plaintiff 1 is unlawful, it is revoked, and it is so decided as per Disposition by applying Article 14 of the Administrative Litigation Act and Article 89 of the Civil Procedure Act to the burden of litigation costs.

Judges Kim Jae-chul (Presiding Judge)