Cho High Court Decision 201Do1078 (No. 11, 2011)

Any disposition that is reduced or exempted on account of failing to meet the requirements for reduction or exemption of capital gains tax for the purchaser of newly-built house

After the expiration of the acquisition period of a newly-built house, the apartment was acquired as a member of the association, and the association concluded a sales contract for the remaining house with a person other than the members of the association during the acquisition period of the newly-built house, and there is no evidence to acknowledge that the down payment

2011Gu 20058 Revocation of Disposition of Imposing capital gains tax

PostalAA

Head of Eastern Tax Office

January 25, 2013

February 15, 2013

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposition of capital gains tax of KRW 000 against the Plaintiff on December 28, 2010 is revoked.

1. Details of the disposition;

A. The non-party BB and the first district housing association (hereinafter referred to as the "non-party BB and the first district housing association"), which is the housing construction business operator under the former Restriction of Special Taxation Act (amended by Act No. 6762 of Dec. 11, 2002, hereinafter the same) (hereinafter referred to as the "non-party BB and the first district housing association"), was authorized by the competent authority on May 15, 2002 after obtaining authorization from the competent authority on September 9, 2002 and newly constructed the 231 household units of the apartment housing, including Dongdaemun-gu Seoul, Dongdaemun-gu BBB Dong 997 BBBBB apartment, 997, and obtained approval for the use of the above housing on April

B. On June 15, 2005, the Plaintiff joined the non-party partnership and acquired the above apartment 00 Dong 000 (hereinafter referred to as the “instant real estate”) as a member’s qualification, and transferred the instant real estate on July 26, 2007.

C. The Plaintiff filed an application for reduction or exemption of the relevant transfer income tax with the Defendant, asserting that the date of approval for use of the instant real estate ( April 12, 2005) falls after the acquisition period of a newly-built house under Article 99-3(1) of the former Restriction of Special Taxation Act (from May 23, 2001 to June 30, 2003). However, the remainder remaining after the non-party union supplied to the said apartment to the non-party members within the acquisition period of the newly-built house was sold to the non-party and received the down payment within the acquisition period, and that the transfer income tax on the acquirer of the newly-built house under Article 99-3(1) of the former Restriction of Special Taxation Act should be fully reduced or

D. The Defendant, on the ground that the non-party association could not recognize the fact that the above apartment was sold to persons other than its members within the acquisition period of newly-built house, and on the ground that the transfer of the real estate by the Plaintiff does not constitute the reduction or exemption of capital gains tax under Article 99-3(1) of the former Special Taxation Act, denied the relevant transfer income tax reduction or exemption, and on December 28, 2010, notified the Plaintiff of the correction and notification of KRW 000 of capital gains tax reverted to the Plaintiff in 207

[Reasons for Recognition] The non-speed facts, Gap evidence 3, 5, 6, 9, and 1 and 2, and the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The instant disposition shall be revoked on the grounds that it is unlawful for the following reasons.

(1) During the acquisition period of a newly-built house under Article 99-3(1) of the former Restriction of Special Taxation Act, the non-party association was selling the relevant house in general and paying the down payment to non-party KimCC, HuD, DoE, and MaximumF, etc. Therefore, the Plaintiff’s transfer of the instant real estate constitutes the subject of the special taxation of capital gains tax as stipulated in Article 99-3(1)

(2) The Plaintiff initially did not have any connection with the Seoul Dongdaemun-gu BB Dong, which is the location of the instant real property, and did not sell the instant real property from the non-party partnership, while the Plaintiff sold the instant real property from the non-party partnership. Therefore, the Plaintiff is merely a member of the non-party partnership, not a member of the non-party partnership, but a general buyer, and the transfer income tax on the Plaintiff should be reduced or exempted

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(1) As to the first argument

(A) Article 9-3(1) of the former Restriction of Special Taxation Act provides for the remaining period of 10/100 of capital gains tax for the income accruing from the transfer of a newly-built house falling under any of the following subparagraphs to the non-party 2 by the association within 5 years from the date of its acquisition, and that the non-party 2 purchased the newly-built house from the non-party 3 association within 9 years from May 23, 200 to June 30 (hereinafter referred to as the "period of acquisition of a newly-built house"), and that the remaining period of acquisition of the newly-built house under Article 9-3(3) of the former Enforcement Decree of the Restriction of Special Taxation Act (which means the remaining period of acquisition of the newly-built house by the non-party 3 and the non-party 2 acquired the newly-built house within 9 years from the date of its acquisition, and the remaining period of acquisition of the newly-built house by the non-party 3 association within 9 years from the date of its acquisition.

(2) As to the second argument

The fact that the plaintiff joined the non-party partnership as a member and purchased the real estate of this case is the same as mentioned above, and the evidence submitted by the plaintiff including Gap evidence No. 8 is insufficient to recognize that the plaintiff is a general buyer who is not a member of the association, and there is no other evidence to acknowledge this differently. The plaintiff's assertion on this different premise is groundless.

(3) Sub-decisions

Therefore, the Defendant’s disposition denying the relevant transfer income tax reduction and exemption is lawful, deeming that the transfer of real estate by the Plaintiff does not constitute the reduction and exemption of transfer income tax under Article 99-3(1) of the former Restriction of Special Taxation Act.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.