[1] Termination period of the right to purchase a housing unit (the status of being selected as a tenant) falling under the "right to acquire real estate" under Article 94 (1) 2 (a) of the former Income Tax Act (affirmative)

[2] In a case where Gap inherited the status of tenant of rebuilding apartment in the deceased wife Gap, and there was internal resolution on the approval of use on September 15, 2006, and after the completion of the inspection of use on September 19, 2006, the remainder of the sale price for reconstruction apartment for which the certificate of completion of use inspection was issued on September 15, 2006, and the registration of ownership preservation was completed, and there was a problem that the transfer of another apartment that had been acquired separately and resided in two or more years on September 18, 2006 constitutes non-taxation for one house for one household in relation to the time of acquisition of reconstruction apartment, the case holding that this constitutes non-taxation for one house for one household

[1] The right (the position of being selected as a tenant) to purchase the existing house or site and the incidental and welfare facilities to be newly built by a housing reconstruction association member under the former Housing Construction Promotion Act (wholly amended by Act No. 6916 of May 29, 2003) (hereinafter “housing, etc.”) to purchase the housing and the incidental and welfare facilities to be acquired according to a project plan by providing the existing housing or site to the association, constitutes “right to acquire the real estate” under Article 94(1)2(a) of the former Income Tax Act until the ownership of the housing, etc. is acquired by the ownership of the housing, etc., until the ownership of the housing, etc. is acquired. The acquisition of the ownership referred to in this context includes not only the acquisition of the ownership by the registration but also the acquisition of the ownership where the compensatory benefits have been almost fully fulfilled by social norms.

[2] The case holding that Gap, who succeeded to the status of tenant of rebuilding apartment in the deceased wife, actually acquired the ownership of rebuilding apartment by paying the remainder of the rebuilding apartment on September 15, 2006 after the internal resolution on approval for use was made on September 15, 2006, and after the completion of registration of ownership preservation was paid on November 15, 2006, it constitutes a house subject to non-taxation for one household in relation to the time of acquisition of rebuilding apartment, in case where the transfer of another apartment which was acquired separately and resided in two or more years on September 18, 206 constitutes a house subject to non-taxation for one household in relation to the time of acquisition of the rebuilding apartment, and as long as Gap actually acquired the ownership of rebuilding apartment by paying the remainder of the sale price on November 15, 2006, or was issued the certificate of ownership inspection on the previous tenant ( September 15, 2006) or the certificate of ownership inspection ( September 19, 2006).

[1] Article 94 (1) 2 (a) of the former Income Tax Act (amended by Act No. 9897 of Dec. 31, 2009) / [2] Article 94 (1) 2 (a), 89 (1) 3, and 98 of the former Income Tax Act (amended by Act No. 9897 of Dec. 31, 2009), Articles 154 (1), and 162 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 19890 of Feb. 28, 2007)

[1] Supreme Court Decision 92Nu8934 delivered on April 27, 1993 (Gong1993Ha, 1606) Supreme Court Decision 2005Du5369 Delivered on June 15, 2007 (Gong2007Ha, 1190)

Plaintiff (Law Firm Gwangju, Attorneys Kim Tae-ho et al., Counsel for plaintiff-appellant)

The head of Yangcheon Tax Office

Seoul High Court Decision 2008Nu30474 decided April 15, 2009

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. A reconstruction association's member under the former Housing Construction Promotion Act (amended by Act No. 6852 of Dec. 30, 2002 and enforced from July 1, 2003; hereinafter the same shall apply) has a right to purchase a house and its appurtenant or welfare facilities (hereinafter referred to as "house, etc.") to be newly built after providing the existing house or housing site to the association and acquiring it according to the business plan, constitutes "right to acquire real estate" under Article 94 (1) 2 (a) of the former Income Tax Act (amended by Act No. 9897 of Dec. 31, 2009) until acquiring the ownership of the house, etc. (see, e.g., Supreme Court Decision 2005Du5369, Jun. 15, 2007). The acquisition of ownership refers not only to the case of acquiring the ownership through the registration, but also to the case of actual performance of the ownership in return for payment for the ownership.

2. A. Review of the reasoning of the lower judgment and the evidence duly admitted by the lower court reveals the following facts.

① On June 17, 1981, the Nonparty, the wife of the Plaintiff, was married with the Plaintiff on July 6, 1982, when acquiring and holding the Yangcheon-gu Seoul Metropolitan Government 414-5 tenement house (number 1 omitted).

② After that, the owners of the above apartment house and the neighboring apartment house including the Nonparty form a reconstruction association on June 28, 2003 after obtaining authorization to establish the housing association on June 30, 2003 pursuant to the provisions of the former Housing Construction Promotion Act, and obtained a rebuilding project approval on June 30, 2003. At that time, the Nonparty was selected as residents of the Yangcheon-gu Seoul Metropolitan Government 1027 Yangcheon Stlobing2 Complex (hereinafter “the reconstruction apartment in this case”) (hereinafter “the reconstruction apartment in this case”) to be constructed, and concluded a sale contract with the reconstruction association and the reconstruction apartment in this case at KRW 95,48,00 on October 28, 2004.

③ On November 29, 2005, the Nonparty died in the progress of a reconstruction project, and inherited the status of being selected as the occupant from the Nonparty, the Plaintiff inherited the status of being selected as the occupant from the Nonparty, on November 15, 2006, after the completion of the reconstruction apartment of this case, paid the remainder of KRW 19,089,600 for the rebuilding apartment of this case, and completed the registration of ownership preservation in the name of the Plaintiff on January 12, 2007.

④ In the aggregate building ledger of the reconstruction apartment of this case, the date of approval for use is registered as of September 15, 2006. The date of this date is the date of internal resolution on the proposal of a person in charge of the performance that the building is constructed properly as a result of a pre-use inspection under the former Housing Construction Promotion Act, and the head of Yangcheon-gu notified the rebuilding association, etc. that the completion of pre-use inspection was processed later on September 19, 2006, the head of Yangcheon-gu notified him of the receipt of the pre-use inspection.

⑤ On the other hand, on December 6, 1997, the Plaintiff acquired 1279 Hodong-dong apartment (No. 3 omitted), Yangcheon-gu, Seoul, Yangcheon-gu, 1279 (hereinafter “instant apartment”) and resided in it for two or more years, and transferred it on September 18, 2006, and reported and paid KRW 62,670,150 as capital gains tax to the Defendant on November 30, 2006.

④ After that, on January 22, 2007, the Plaintiff filed an application for rectification of capital gains tax on the ground that the transfer of the apartment of this case constitutes one house non-taxable object for one household. However, the Defendant rejected the application on February 21, 2007.

B. Examining the above facts in light of the legal principles as seen earlier, the Plaintiff actually acquired the ownership of the reconstruction apartment of this case only by paying the balance of the purchase price of this case on November 15, 2006, and the Plaintiff had the right to purchase the reconstruction apartment of this case, namely, the right to acquire the real estate. Thus, as long as there was no house other than the apartment of this case at the time of the transfer of the apartment of this case, the transfer of the apartment of this case constitutes one house non-taxation for one household.

The court below held that it is inappropriate for the plaintiff acquired the reconstruction apartment of this case on the date of issuing the certificate of usage inspection for the reconstruction apartment of this case on the ground of Article 162 (1) 4 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 22034, Feb. 18, 2010) which provides for the time of acquisition of a building constructed by himself, but the conclusion that the disposition of this case was unlawful because the transfer of the apartment of this case constitutes one house non-taxation for one household and thus the defendant's disposition of this case

Supreme Court Decision 98Du13508 Decided December 8, 1998 cited in the ground of appeal is different from the case and it is not appropriate to invoke the case in this case.

3. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Nung-hwan (Presiding Justice)