Where a member of a reconstruction association transfers the status of being selected as an occupant, the time to meet the requirements of one house per household for the previous house.

Article 155 (16) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 17555, Mar. 30, 2002) provides that "the date of approval for a business plan pursuant to Article 33 of the Housing Construction Promotion Act" is different from the previous Supreme Court precedents that held that "the time when a member of a reconstruction association who transferred the right to move into a housing unit shall meet the requirements of one household" shall be "the time of transfer of the right to move into a housing unit". Thus, the date of approval for a business plan pursuant to the above provision shall be construed as the date of the first approval for a business plan converted into the right to acquire real estate ownership of the previous apartment, unless there are special circumstances, such as that apartment is not included in the subject of reconstruction at the time of approval for a business plan after approval for a change of a business plan, and it is not permitted to determine whether it falls under one house of one household based on the date of approval for a change of another detailed plan after that.

Article 94(1) of the Income Tax Act, Article 89 subparag. 3 of the former Income Tax Act (amended by Act No. 6781 of Dec. 18, 2002), Article 154(1) and (8) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 17555 of Mar. 30, 2002), Article 154(1) and (6) and Article 155(17)1 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 17555

[Plaintiff-Appellant-Appellee] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jong-soo et al., Counsel for plaintiff-appellant-appellant-appellee)

[Judgment of the court below]

The Director of the Pacific District Office

April 1, 2005

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 KRW 53,629,010 on December 15, 2003 against the Defendant shall be revoked.

1. Details of the disposition;

A. On September 2, 199, the Plaintiff concluded a sales contract with Nonparty 1 to purchase a door-type apartment (Dong and lake omitted) of 135,00,000 apartment (hereinafter referred to as the “instant apartment”) in Songpa-gu Seoul, Songpa-gu, Seoul, and paid to Nonparty 1 KRW 10 million as the down payment on the same day, KRW 45 million as the intermediate payment on September 27, 1999, and KRW 80,000 as the remainder payment on October 9, 199.

B. On the ground of 89,496.79 square meters of land in Songpa-dong, Songpa-gu, Seoul, and the head of the Si/Gun/Gu, the reconstruction association established a reconstruction project plan to remove the existing door-type apartment on the ground of 1,49,496.79 square meters of the apartment in this case, and to reconstruct 1,696 units of the apartment in this case, and to obtain approval from the Songpa-gu Office on September 6, 2000, and to modify part of the project plan thereafter, respectively, and obtained approval for the alteration of the reconstruction project plan from the Songpa-gu Office on April 7, 2001 and September 6, 2002.

C. On September 19, 2001, the Plaintiff was a member of the Seodaemun-gu Apartment Reconstruction Association, which was scheduled to be constructed through reconstruction, and was selected as an occupant of the 44th unit apartment complex in Yongsan-dong, Songpa-gu, Seoul (Dong and lake omitted) and additionally paid KRW 178,400,00 as the charges. On February 14, 2002, the Plaintiff transferred the status of being selected as an occupant of the above Samsung Young-si apartment in the above Samsung-si (hereinafter “the occupancy right of this case”) to the Kim Jong-dong, to the Kim Prize-dong, the Plaintiff agreed to deduct the unpaid share of the above occupancy right from the balance.

D. As of the date of approval of the above project plan, the Defendant issued the disposition of this case on December 15, 2003 by imposing KRW 44,971,920, additional tax on negligent tax returns, KRW 4,497,192, KRW 4,000, KRW 178,400, KRW 678,000, KRW 678,000, KRW 678,000, and KRW 2,500, and KRW 2,500, respectively, after deducting the aforementioned apartment from the transfer value of the above right to move in as of the date of approval of the above project plan, and KRW 157,42,00, KRW 1529,00, KRW 44,971,920, KRW 4,497, KRW 192, KRW 4,159, KRW 902, KRW 503,629,010.

[Reasons for Recognition] Facts without dispute, Gap 1 through 4, Eul 1, five, Eul 6-1, 2, Eul 7, the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

Since the plaintiff acquired the apartment of this case around September 2, 199, the transfer income tax shall be exempted on the ground that it constitutes one house per household if the period of possession has elapsed for more than one year. Since the plaintiff purchased the apartment of this case and thereafter the amount of two years and four months has already elapsed until the transfer of the above right to move in, the above right to move in constitutes one house for one household subject to non-taxation.

In addition, in case where the original business plan has been modified by the interpretation of Article 155 (16) of the former Enforcement Decree of the Income Tax Act, the plaintiff should determine whether it constitutes one house per household as stipulated in Article 154 (1) as of the date of approval of modification. If the Housing Association of the residential apartment as of April 7, 2001, which received the approval of modification, is based on the present as of April 7, 2001, the plaintiff acquired the apartment of this case, and as such, the right to move into the above housing constitutes one house

Therefore, although the transfer of the above occupancy right is not subject to taxation, the defendant's disposition of this case, which is different from this, is unlawful.

B. Relevant statutes

Income Tax Act

Article 94 (Scope of Transfer Income)

(1) Capital gains shall be the following income generated in the relevant year:

1. Income accruing from transfer of land (referring to a lot of land subject to registration of land category in the cadastral record under the Cadastral Act) or buildings (including the facilities and structures annexed to such buildings);

2. Income accruing from transfer of any right to real estate falling under any of the following items:

(a) Right to acquire real estate (including the right to acquire a building upon completion of its construction and its appurtenant land);

former Income Tax Act (amended by Act No. 6781 of Dec. 18, 2002)

Article 89 (Non-Taxable Transfer Income Tax) No income tax on capital gains (hereinafter referred to as "capital gains tax") shall be levied on the following incomes:

3. Income accruing from a transfer of one house for one household prescribed by Presidential Decree (excluding high-class houses, the total floor area, value, facilities, etc. of which exceed the standard prescribed by Presidential Decree) and the appurtenant land within the area calculated by multiplying the area of land on which the building is built by the ratio prescribed by Presidential Decree by each region;

The former Enforcement Decree of the Income Tax Act (amended by the Presidential Decree No. 17555 of March 30, 2002, hereinafter referred to as the "former Enforcement Decree of the Income Tax Act").

Article 154 (Scope of One House for One Household)

(1) The term "one house for one household" in subparagraph 3 of Article 89 of the Act means that, in cases where a resident and his/her spouse together with the family members who make their living at the same address or same place of residence, have one house in Korea as of the date of transfer, and the period of holding the relevant house is three years or more, it shall not be subject to the restriction on the period of holding:

1. Where a constructed house for lease under the Rental Housing Act is acquired and transferred, if the residing period from the date of leasing the relevant constructed house for lease to the date of transferring the relevant house is five years or more;

2. Cases falling under any of the following items. In such cases, the remaining house and its appurtenant land which are transferred within two years from the relevant transfer date or expropriation date shall be deemed to be included in the cases of items (a) and (b) above:

(a) Where the whole or part of the house and its appurtenant land are transferred to the executor of the relevant public project for which the compensation of losses is applied;

(b) Where expropriated under the Land Expropriation Act and other Acts;

(c) Emigration or other cases prescribed by the Ordinance of the Ministry of Finance and Economy;

3. Where the house which has resided for not less than one year is transferred due to school attendance, circumstances of service, medical treatment of diseases, or other unavoidable reasons.

(8) In the calculation of the residence period or retention period under the provisions of paragraph (1), if the house is reconstructed during the residence or retention period due to the loss by fire, collapse and wear-out, etc., the period of the destroyed house and that of the reconstructed house shall be summed up.

Article 155 (Special Cases in “One House for One Household”)

Where a member of an redevelopment association under the Urban Redevelopment Act or a reconstruction association under the Housing Construction Promotion Act (limited to the date of authorization of an administrative disposition plan under Article 34 of the Urban Redevelopment Act, the date of approval of a project plan under Article 33 of the Housing Construction Promotion Act, and in case where an existing house is removed before that date, limited to the person who owns the existing house falling under Article 154 (1) as of the date of removal of the existing house) transfers the status of being selected as an occupant through such association (including its appurtenant land), notwithstanding the provisions of Article 94 (1) 2 (a) of the Act, in case where there is no other house as of the transfer date, it shall be considered as one house for one household under Article 154 (1) of the Act

In applying the provisions of the main sentence of Article 154 (1) to one house falling under any of the following subparagraphs, "three years" shall be deemed "one year":

1. A house acquired by a person who concludes a sales contract (including the case of public sale or auction) for acquiring the house from January 1, 1999 to December 31, 199, and pays the down payment (referring to the bid bond, etc. in the case of public sale or auction);

2. A house (including any house acquired by a member through a housing association under the Housing Construction Promotion Act or an urban redevelopment cooperative under the Urban Redevelopment Act) constructed by himself from January 1, 199 to December 31, 199, for which the approval for use or inspection for use (including approval for temporary use) has been obtained; and

(c) Markets:

(1) According to the previous Supreme Court precedents (see, e.g., Supreme Court Decision 93Nu17324, Mar. 8, 1994), in a case where a member of the redevelopment association provides a house and its appurtenant land to the redevelopment association, and acquires and transfers an apartment sale right according to the management and disposal plan, the above apartment sale right shall be regarded as one house for one household under the above Acts and subordinate statutes and land appurtenant thereto, and if a member of the redevelopment association satisfies the requirements of one house for one household until the time of transfer, the transfer shall be regarded as the transfer of one house for one household, and shall be subject

However, on December 31, 1998, Article 155 (16) of the former Enforcement Decree of the Income Tax Act was newly established on December 31, 1998, and the reconstruction association's member who transferred the right to move into a housing unit shall meet the requirements of one house for one household, not "the time of transfer of the right to move into a housing unit" but "the date of approval of the business plan under the provisions of Article 33 of the Housing Construction Promotion Act" was changed substantially by the previous Supreme Court.

The purpose of not imposing income tax on the income accrued from the transfer of one house for one household is to ensure the stability of the residential life and the freedom of movement of residence for the people by failing to impose income tax on the transfer income in a case where there are certain reasons to view that the transfer of one house owned in Korea is not a temporary residence or transfer of one house for the purpose of speculation. In light of this purport, the point at which the transfer of one house for one household should meet the requirements under Article 155(16) of the former Enforcement Decree of the Income Tax Act is not the transfer date of the right to move into a house but the longer reasons before the approval date of the project plan, the value of the right to move into a house increases considerably compared with the value of the apartment house. Thus, the Plaintiff’s assertion that the purchase of apartment house in the name of a house to be removed immediately after reconstruction goes against the purpose of non-taxation for the transfer of the right to move into a house should not be accepted even if it is obviously contrary to the provisions of the previous Supreme Court precedents regarding the transfer of the right to move into a house.

Furthermore, on September 6, 200, when the plaintiff, who transferred the right of occupancy, owned the existing house as stipulated in Article 154 (1) of the former Enforcement Decree of the Income Tax Act as of September 6, 200, which is the date of the approval for rebuilding project of the above reconstruction association, the status of being selected as a member of the housing reconstruction association, that is, whether the plaintiff had owned the existing house as of September 6, 200, and the date when the plaintiff concluded a sales contract and paid the down payment for the apartment of this case on September 2, 1999. In this case, in applying the main sentence of Article 154 (1) 1 of the former Enforcement Decree of the Income Tax Act as of September 1, 199, it shall be deemed that the period of possession of the apartment of this case as of the date of the approval for rebuilding project as of October 9, 199 that the plaintiff acquired the apartment of this case falls under one house of this case as of the date of the approval for rebuilding project.

(2) Under the principle of no taxation without the law, the interpretation of tax laws and regulations shall be interpreted as the legal text, barring any special circumstances, and it shall not be extensively interpreted or analogically interpreted without reasonable grounds. Under the former Housing Construction Promotion Act related Acts and subordinate statutes, in order to obtain a reconstruction project plan approval, the reconstruction association obtained consent from the building owners of the building site of the reconstruction project before the application for the approval of the reconstruction project plan, and acquired the land in the project site or obtained consent from the owners thereof, and thus, in the event that a reconstruction project plan approval is approved, the right to the previous apartment is converted into the right to acquire real estate. Article 155(16) of the former Enforcement Decree of the Income Tax Act provides that at the time of the approval of the project plan, the time of meeting the requirements for one house for one household based on such effect as the approval of the project plan is stipulated as the date of the approval of the project plan. Unless there are special circumstances such as that the apartment building of this case is not included in the reconstruction project subject only after the approval of the project plan, it cannot be interpreted as the first one day of the project plan.

(3) Therefore, the apartment house of this case did not meet the requirements for one house for one household under Article 154(1) of the former Enforcement Decree of the Income Tax Act because its holding period has not elapsed one year as of the date of approval of the business plan. Thus, the right to move into the instant apartment cannot be deemed a transfer of one house which is exempt from capital gains tax. Ultimately, the defendant who imposed capital gains tax on the transfer of the right to move into the apartment of this case is legitimate.

3. Conclusion

Therefore, the plaintiff's claim seeking revocation on the premise that the disposition of this case is unlawful is dismissed as it is without merit. It is so decided as per Disposition.

Judges Kim Byung-soo