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(영문) 부산지방법원 2013. 05. 03. 선고 2012구합4266 판결
아파트를 새로이 취득하고 2년 이내에 조합원입주권을 양도하면 비과세에 해당됨[국패]
Case Number of the previous trial

The early appellate court 2012 Deputy 0741

Title

It is non-taxation when newly acquired apartment and transferring the association member's relocation right within two years.

Summary

After acquiring an apartment house, the association member's relocation right was transferred within two years thereafter, and this is subject to non-taxation as it falls under Article 155 (17) 2 of the Enforcement Decree.

Related statutes

Article 155 (17) 2 of the Enforcement Decree of the Income Tax Act

Cases

2012Guhap4266 The revocation of a disposition rejecting a request for rectification of capital gains tax

Plaintiff

NewA

Defendant

Head of Eastern Tax Office

Conclusion of Pleadings

March 15, 2013

Imposition of Judgment

May 3, 2013

Text

1. The Defendant’s disposition rejecting to rectify capital gains tax against the Plaintiff on October 21, 2011 is revoked.

2. The costs of the lawsuit are assessed against the defendant.

Cheong-gu Office

The same shall apply to the order.

Reasons

1. Details of the disposition;

“A. On January 28, 1986, the Plaintiff’s husband’s U.S.B acquired the ownership of U.S. OO-dong 143-10CC apartment 1 and 503 (hereinafter “the apartment of this case”) and resided together with the Plaintiff and her husband. Dodddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddd

C. On November 3, 2003, the Plaintiff acquired the ownership of 898-9 EEE apartment 54 and 203 OOdong 898-9, OE apartment 54, and on December 26, 2007, as the management and disposal plan for the EE apartment was approved, the above apartment owned by the Plaintiff was converted into the association member's relocation right.

D. On May 4, 2011, the Plaintiff transferred the association member's relocation right to a third party, and reported and paid OOOO on July 31, 201.

E. The Plaintiff asserted that the transfer of an association member’s relocation right should be exempt from taxation pursuant to Article 155(4) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 23887, Jun. 29, 2012; Presidential Decree hereinafter “Enforcement Decree”). On September 21, 2011, the Plaintiff filed a claim for correction of the transfer income tax paid to the Defendant on October 21, 201, but the Defendant rejected it on October 21, 201.” (f) The Plaintiff dissatisfied with the claim and filed a request with the Tax Tribunal for adjudication on January 20, 2012, but the claim was dismissed on May 31, 2012.

[Ground of Recognition] Unsatisfy, Gap evidence l through 7, 9, Eul evidence 1, Witness B's testimony

2. The assertion and judgment

A. The plaintiff's assertion

According to Article 155 (17) 2 of the Enforcement Decree, where one household possessing one house and one association member's relocation right transfers one association member's relocation right within two years from the date of acquiring one house, it shall be exempted as one house for one household, and it does not need one house for one household at the time of acquiring the association member's relocation right. The plaintiff household acquired the apartment of this case owned by UDR only on January 6, 201 when UDR moved into UDR and transferred the association member's relocation right within two years thereafter, the rejection disposition of this case is unlawful on the opposite premise in spite of being exempt from taxation pursuant to the above provision.

It is as shown in the attached Form.

C. Determination

"One house for one household prescribed by Presidential Decree" and one association member's relocation right under Article 89 (1) 3 of the Income Tax Act shall not be imposed capital gains tax on the income accruing from the transfer of specific land annexed thereto, and the main sentence of Article 154 (1) of the Enforcement Decree of the Act shall be Article 89 (1) 3 of the Act means that one household comprised of the resident and his/her spouse together with the family members living together with the same address or residence as of the date of transfer holds one house in the Republic of Korea and the holding period of the relevant house is three years or longer, notwithstanding the provisions of Article 89 (17) 2 of the Act: Where one household possessing one association member's relocation right under the main sentence of Article 89 (2) of the Enforcement Decree of the Income Tax Act (limited to one household possessing an existing house falling under Article 154 (1) as of the date of authorization for management and disposal plan under Article 48, and where the relevant house is not acquired within 15 years from the date of transfer of the relevant house as of acquisition, other association member's relocation right under Article 15 (14).

Next, we examine whether the plaintiff household transferred the association member's relocation right of this case within 2 years from the time of acquisition of the apartment of this case, and UDR transferred the apartment of this case from UB to the plaintiff household due to marriage, and thereafter, transferred the apartment of this case to the plaintiff household again after being donated the apartment of this case from UB to the plaintiff household. As seen above, if UDR constitutes a separate household due to marriage, UDR cannot be deemed as the member of the plaintiff household. If UDR acquired the apartment of this case on January 28, 1986 based on UBB, it is deemed that the plaintiff household acquired the apartment of this case, and if the transfer income tax is imposed on the transfer of the association member's relocation right of this case, it is not imposed in light of the fact that it falls under Article 155 (17) 1 of the Enforcement Decree when U.S. transferred the association member's relocation right of this case during the transfer period of U.D., it is reasonable to view that the plaintiff household of this case has acquired the apartment of this case when U.D transferred to the

Therefore, the Plaintiff’s household acquired the instant apartment on January 6, 201, and transferred the instant association member’s relocation right within two years thereafter, and this shall be deemed non-taxable as falling under Article 155(17)2 of the Enforcement Decree. Therefore, the instant rejection disposition is unlawful on the contrary premise.

3. Conclusion

If so, the plaintiff's claim shall be accepted on the grounds of its reasoning, and it is so decided as per Disposition.

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