Whether a partner can be interpreted as a partner who owns an existing house as of the date of approval of a project plan.

Since the right to sell in lots meets the requirements for residence for at least three years and for at least two years during the period of the existing house as of the date of acquisition of the business plan, the transfer of the plaintiffs' right to occupy in this case constitutes one house for one household at the time of transfer, and thus is exempt from taxation.

Article 89 of the Corporate Tax Act

Article 94 of the Corporate Tax Act

1. The Defendant’s disposition of imposition of capital gains tax of KRW 13,201,200 on October 12, 2007, and KRW 13,207,050 on Plaintiff Gamba, which belonged to the year 2002, against Plaintiff Gamba, shall be revoked.

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

The same shall apply to the order.

1. Circumstances of dispositions;

A. On May 11, 1992, the Plaintiff acquired 1/2 shares of 00 ○○○○○dong 656-○ apartment 15 dong 110 (hereinafter “the apartment of this case”) and resided in 6 years and 3 months, and the reconstruction project was implemented after the formation of ○○ apartment district 1 unit reconstruction housing association with respect to the apartment of this case. After that, the said reconstruction association obtained a business plan under Article 33(1) of the former Housing Construction Promotion Act (amended by Act No. 6841, Dec. 30, 2002; hereinafter the same) on May 6, 2002, the Plaintiff obtained the right to move in (hereinafter the right to move in of this case) as a member of the reconstruction association of the apartment of this case, for which the authorization to implement the project was granted.

B. Meanwhile, on February 21, 1997, the Plaintiffs acquired 1/2 shares of ○○○○-dong 713 ○○○○○-dong 713 ○○○ apartment 121 dong 401 (hereinafter “○○○ apartment”) and reported the transfer income tax according to the standard market price on August 13, 2002.

C. After that, on October 4, 2002, the Plaintiffs transferred the right to move in of this case to Gamba (hereinafter the transfer in this case) and each of the transfer values of KRW 87,500,00 and the acquisition value of KRW 42,861,00, respectively, decided to make a preliminary return of capital gains tax base of KRW 42,861,000. However, on October 12, 2007, the Defendant confirmed that the Plaintiffs underreported the transfer income tax of the right to move in of this case, and issued the instant disposition to notify the Plaintiff of the transfer income tax of KRW 12,50,00 for the transfer income tax of KRW 12,68,110 for the Plaintiff Ansan-type and the transfer value of the right to move in of this case was determined to be KRW 12,50,000 for the Plaintiff Parkba-do.

[Ground for Recognition: Facts without dispute, Gap evidence 1, Eul evidence 1 to 4]

2. Whether the instant disposition is lawful

A. The parties' assertion

(1) The defendant asserts that Article 155 (16) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 18044 of Jun. 30, 2003; hereinafter the "Enforcement Decree of the Income Tax Act") provides that the transfer of sale right shall be deemed a transfer of one house for one household only in cases where a member of a reconstruction association under the former Housing Construction Promotion Act who owns an existing house corresponding to one house for one household as of the date of approval of a project plan transfers the status of being selected as an occupant through the association (hereinafter the "right of sale"), notwithstanding the fact that the right of sale is a right to acquire real estate, the above right of sale should be deemed as a transfer of one house for one household. For the plaintiffs to become a member under the above provision, the above reconstruction association did not own another house at the time of the above approval of project plan (the time of acquisition of ownership right) and the transfer date of this case. Since the plaintiffs owned the above ○○ apartment as at the time of acquisition of ownership right, the plaintiffs do not constitute a reconstruction project of this case.

(2) As to this, Article 155(16) of the Enforcement Decree of the Act applies to a provision that applies if a member of a reconstruction project association who owns an existing house does not own another house at the time of "transfer of right to sell lots" regardless of whether it falls under one house for one household as of the approval date of the project plan for a housing reconstruction project, and the plaintiffs were the members of the association of this case who owned the existing house as of the approval date of the project plan for the housing reconstruction project for the apartment of this case. Before transferring the right to own of this case, the plaintiffs transferred ○○○ apartment ( August 13, 2002), before transferring the right to own of this case, the income accrued from the transfer of the right to own house of this case by the plaintiffs, which is exempt from capital gains tax

(b) Related statutes;

Article 89 of the Corporate Tax Act

Article 94 of the Corporate Tax Act

Article 154 of the Enforcement Decree of Income Tax Act

C. Determination

(1) Article 89 subparagraph 3 of the Income Tax Act (hereinafter referred to as the "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 owns one house as of the date of transfer, the period of possession of the house shall be three years or more and the period of residence shall be two years or more, and Article 155 (16) of the Enforcement Decree of the Income Tax Act provides that where a member of a reconstruction association under the Housing Construction Promotion Act transfers the status of being selected as an occupant acquired through the association, it shall be considered 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 Act.

(2) Article 15(1)5 of the Enforcement Decree of the Housing Act provides that "No one shall be determined as at the time of transfer because transfer gains tax is calculated as at the time of transfer of assets." Article 154(1)5 of the Enforcement Decree of the Housing Act provides that "No one shall be determined as at the time of sale of housing for the first five years or more" (the first five years or more of the Enforcement Decree of the Housing Act provides that "No one shall be the date of sale of housing for the first five years or more of the Enforcement Decree of the Housing Act." Article 155(16)5 of the Enforcement Decree of the Housing Act provides that "No one shall be determined as at the time of sale of housing for the first five years or more of the Enforcement Decree of the Housing Act (the first five years or more of the Enforcement Decree of the Housing Act shall be the date of sale of housing for the first five years or more of the Enforcement Decree of the Housing Act; the first five years or more of the Enforcement Decree of the Housing Act provides that the first five years or more of the Enforcement Decree of the Housing Act shall not be the first five years or more of the Housing Act.

(3) In the case of this case, although the plaintiffs had already owned ○○○ apartment at the time of acquiring the occupancy right of this case, the right to sell this case had already been transferred before transferring the occupancy right of this case. Since the ownership of this case was three years or more at the time of the approval of the project plan which was the date of acquisition, the ownership of this case has satisfied the requirements of residence for two years or more, the transfer of the right to move in of this case constitutes "one house for one household" and is subject to non-taxation. Accordingly, the defendant's disposition of this case on a different premise is unlawful.

3. Conclusion

Therefore, the plaintiffs' claim of this case seeking the cancellation of the disposition of this case is justified and it is so decided as per Disposition by the assent of all participating Justices.