Whether a disposition excluded from non-taxation is legitimate on the date of approval for management plan.

As of the date of approval for the management and disposal plan, one house for one household is non-taxable in transferring the right to sell the house acquired due to reconstruction of the previous house, because there is two houses for one household after acquiring a new house other than the previous house.

Article 89 (Non-Taxable Income)

Article 98 (Time of Transfer or Acquisition)

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of refusal to reduce or correct capital gains tax of KRW 108,436,430 against the Plaintiff on January 3, 2008 shall be revoked.

1. Details of the disposition;

A. On July 26, 2001, the Plaintiff acquired and resided in ○○○-dong, Seoul, ○○○-dong, 160○-1, 07, Da-dong, 07 (hereinafter “previous Housing”).

B. On April 29, 2003, the Plaintiff acquired the right to sell a reconstruction apartment from the members of the Seocho-gu ○○ apartment reconstruction association located in ○○○○-dong 130,00, and was selected as residents of Seocho-gu 114 Dong 1004 (hereinafter “the new house in this case”) to be constructed in the future. The new house in this case, etc. was completed and the use was approved on June 7, 2006. The Plaintiff paid full contributions to the association members on June 30, 2006.

C. Meanwhile, on October 26, 2006, a reconstruction project under the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents has been implemented and a management and disposal plan under Article 48 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents has been approved, the Plaintiff acquired the right to sell reconstruction apartment units (hereinafter referred to as “the right to sell reconstruction apartment units”. On June 28, 2007, the Plaintiff transferred the instant right to sell housing to Kim ○, Kim Do, for purchase price of KRW 890 million, and on July 11, 2007, transferred the right to sell housing units to the Defendant on the premise that the special provisions on the non-taxation of the housing unit of one household do not apply to the Defendant on July 11, 2007, the scheduled return of tax base of transfer income was made and the Plaintiff voluntarily paid capital gains tax of KRW 149,507,370. However, on November 13, 2007, the Plaintiff claimed for the reduction of capital gains tax exemption of KRW 13014.

D. On June 7, 2006, the Defendant rendered the instant disposition rejecting correction on January 3, 2008 on the ground that the acquisition date of the new house of this case was one year after the date of approval for use, and that the Defendant acquired the new house of this case as of the date of approval for the management and disposal plan of the previous house and owned two houses, and thus, it cannot apply the non-taxation provisions of one house for one household.

[Ground of recognition] Facts without dispute, Gap 1 to 5 evidence, Eul 1 to 8 evidence (including paper numbers), the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

(1) Re-building house is a building constructed by itself under Article 162 (1) 4 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 20618 of Feb. 22, 2008; hereinafter referred to as the "former Enforcement Decree of the Income Tax Act") in relation to the members of the association after the original acquisition by a cooperative that is not a member of the association, and the transfer of it to the members of the association. Therefore, the date of settlement of the price (the date of payment of the contribution) under Article 162 (1) of the former Enforcement Decree

B. Article 155(17) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 2010, Jan. 17, 2001) applies not only to the transfer of the right to move into a cooperative by one household, which meets the non-taxation requirements of one house for one household under Article 154(1) of the former Enforcement Decree of the Income Tax Act without any other house as of the authorization date of the management and disposition plan,

Article 2(1) of the former Housing Management Plan (amended by Presidential Decree No. 1835, Jun. 28, 2007; Presidential Decree No. 18350, Jun. 28, 2007; Presidential Decree No. 20060, Jun. 30, 2006; Presidential Decree No. 20060, Oct. 26, 2006; Presidential Decree No. 20090, Jun. 28, 2007; Presidential Decree No. 2010, Feb. 28, 2006; Presidential Decree No. 20220, Feb. 1, 2006

(b) Related statutes;

Article 89 (Non-Taxable Income)

Article 98 (Time of Transfer or Acquisition)

Article 154 (Scope of “One House for One Household”)

Article 155 (Special Cases concerning One House for One Household)

C. Determination

(1) Article 155(17) of the former Enforcement Decree of the Income Tax Act provides that where a reconstruction or redevelopment project is implemented pursuant to the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents and Dwelling Conditions for Residents, and a household possessing an existing house falling under Article 154(1) transfers the association member's relocation right acquired due to a management and disposal plan as of the date of authorization of the management and disposal plan (where the existing house is removed before the date of authorization, the date of removal of the existing house), the association member's relocation right shall be regarded as one house owned by one household and shall not be exempted from the income tax on the transfer income only in case where the association member's relocation right is transferred within one year from the date of transfer of

The purpose of Article 155(17) of the former Enforcement Decree of the Income Tax Act is to ensure the stability of the residential life and the freedom of residence and relocation of the people by failing to impose income tax on the transfer income in a specific case where it can be deemed that the transfer of one house owned in Korea by one household is not a temporary residence or possession and transfer for the purpose of speculation. On the other hand, the association member's relocation right acquired due to the implementation of a reconstruction project or redevelopment project is not a "real estate" which is a "right to acquire real estate" under Article 94(1)2 (a) of the Income Tax Act. However, if a house meeting the requirements for non-taxation of one house for one household is reconstructed or reconstructed and the owner of an existing house transfers the house after the acquisition of the association member's relocation right, it is reasonable to exempt capital gains tax as well as the transfer of one house for one household prior to reconstruction or redevelopment. In such purport, Article 15(1)5(1)7 of the former Enforcement Decree of the Income Tax Act provides for the non-taxation of one house for the transfer of one household.

② Article 155(17) of the former Enforcement Decree of the Income Tax Act requires that the existing house corresponding to Article 154(1) as of the date of authorization for a management and disposal plan (where the existing house is removed before the authorization date, the date of removal of the existing house) be the requirement for an existing house. Article 154(1) of the former Enforcement Decree of the Income Tax Act stipulates that one house owned by one household as of the date of transfer shall be held for at least three years and shall reside in the relevant house for at least two years in a certain area. In full view of the purport of the non-taxation provision on one house for one household, and relevant provisions, if the said provision is applicable to the non-taxation provision on one house for one household pursuant to Article 155(17) of the former Enforcement Decree of the Income Tax Act, one household shall possess only one house as of the date of authorization for a management and disposal plan, and all requirements for the retention period and residence period shall also be met. Therefore, the non-taxation provision on two houses held as of the date of authorization for a management and disposal plan is inapplicable.

According to the above facts, around October 26, 2006, the Plaintiff acquired a new house other than the previous house and possessed it. Thus, in transferring the right to sell the instant house acquired by the Plaintiff due to the reconstruction of the previous house, one household’s house cannot be subject to non-taxation requirements, and the disposition of this case is lawful, and the Plaintiff’s argument to the same effect is without merit (the claim is without need to be examined).

3. Conclusion

Therefore, the plaintiff's claim of this case seeking the cancellation of the disposition of this case is dismissed as it cannot be accepted.