The time when real estate is converted into the right to move into the right to move into shall be the date of approval

It can only be treated as a ‘house' only if the ownership period of the existing house as of the approval date of the project plan is treated as a ‘house' if there is no other house at the time of transferring the right to move in and the income from the transfer is non-taxable.

Article 154(1) of the Enforcement Decree of the Income Tax Act

1. The judgment of the first instance shall be revoked;

2. The plaintiff's claim is dismissed.

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

Purport of appeal

1. Purport of claim

The Defendant’s disposition of imposition of capital gains tax of KRW 74,121,680 for the Plaintiff on February 2, 2004 shall be revoked.

2. Purport of appeal

The same shall apply to the order.

1. Details of the disposition;

A. On October 8, 199, the Plaintiff entered into a sales contract with ○○○○-dong, ○○○○-dong, ○○○○-dong, ○○○-dong, ○○○○-dong, ○○○ apartment (hereinafter “instant apartment”) to purchase KRW 150 million-price. After paying the price in full to ○○○○, the Plaintiff acquired ownership by completing the registration of ownership transfer on November 27, 199.

B. The Plaintiff, including the instant apartment, joined the ○○ Jeju apartment reconstruction association and invested in the instant apartment as a member of the members of the said association. The said reconstruction association removed existing ○○○○-dong 1, 1,496,79 square meters on the ground outside 1,000 square meters of land in Seoul, ○○-dong 1,00, and then prepared a reconstruction project plan to reconstruct 1,696 households of the apartment 31 units of the said apartment, and obtained the approval of the project plan from the ○○-gu Office on September 6, 200.

C. On October 29, 200, the Plaintiff was selected as the occupant of ○○○○○○ apartment 101 Dong 501, which will be newly constructed by reconstruction at the general meeting of the above reconstruction association and the general meeting of the management and disposal of the apartment held on October 29, 200, and the apartment of this case was destroyed by removal around May 20, 201.

D. On September 29, 2002, the Plaintiff entered into a sales contract with an association status (the occupancy right of the above apartment unit; hereinafter referred to as the "occupant right of the above apartment unit") on the above ○○○ apartment unit (the occupancy right of the above apartment unit; hereinafter referred to as the "the occupancy right of the above apartment unit") to sell 640 million won in price. On October 28, 2002, the Plaintiff transferred the occupancy right of this case to Kim○ at the same time as the remainder receipt on October 28, 2002.

E. On December 27, 2002, the Plaintiff calculated the acquisition value of KRW 251,360,000 according to the standard market price and paid KRW 33,391,750 as capital gains tax by calculating the transfer value and the transfer value of KRW 392,960,00 according to the standard market price.

F. However, on February 2, 2004, the defendant transferred the right to move into an apartment house that did not meet the requirements of one house for one household as of the date of the approval for rebuilding project plan, and reported the transfer value to less than 140 million won, and 30 million won in excess of the acquisition value to the acquisition value, 832,960,00 won in 221,360 won in the transfer value of the right to move into the apartment of this case, and 305,560,960 won in the amount calculated by deducting 305,560,00 won in necessary expenses, from the transfer value of the right to move into the apartment of this case, 305,591,751 won in the transfer income tax for one household as of the date of the said approval for rebuilding project plan, 5,424,683 won in total, 7,497,400 won in total, 105,3714,3714,7

[Ground of recognition] Facts without dispute, Gap 2, 4 evidence, Eul 1-2, Eul 2-1, 2-2, Eul 3 and 4 evidence, and the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

In light of the purport of Article 89 subparag. 3 of the former Income Tax Act (amended by Act No. 6781 of Dec. 18, 2002; hereinafter referred to as the "Act") and Articles 154(1) and 155(16) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 17825 of Dec. 30, 2002; hereinafter referred to as the "Enforcement Decree"), where the right to move into an apartment newly constructed after the house was invested in the reconstruction association, the right to move into the apartment is substituted for the previous house and its appurtenant land, and the right to move into the apartment house is virtually the same as the transfer of the previous house after the approval date of the project plan of the reconstruction association, and if the period for moving into the apartment house is calculated as non-taxation period of the transfer income tax under Article 154(1) of the Enforcement Decree, the plaintiff's transfer of the house to the plaintiff 19-19-19-19 of the Enforcement Decree of the transfer income tax.

(b) Related statutes;

Attachment 'Related Acts and subordinate statutes' shall be as shown.

C. Determination

(1)General theory of statutory interpretation

Under the principle of no taxation without law, or under the principle of no taxation without law, the interpretation of tax laws and regulations shall be interpreted in accordance with the text of the law unless there are special circumstances, and it shall not be allowed to expand or analogically interpret without reasonable grounds.

(2) Criteria for calculating the housing holding period

A reconstruction association under the former Housing Construction Promotion Act (amended by Act No. 6916 of May 29, 2003) is distinguishable from a "house" because a member of the reconstruction association under the former Housing Construction Promotion Act (amended by Act No. 6916 of May 29, 2003) provides an existing house or site to the association and purchases a house, appurtenant or welfare facility (the status of being selected as an occupant) acquired in accordance with the project plan constitutes a "right to acquire a real estate" under Article 94 (1) 2 (a) of the Act until the ownership of the house is acquired in the future. In this case, the time of acquiring the selected status as an occupant is the time of approval of the project plan under Article 33 of the former Housing Construction Promotion Act, and the same applies to the case before the removal of the existing house. Thus, the non-taxation provision on "one house for one household" is treated as a "house under Article 89 (3) of the Act and Article 155 (16) of the Enforcement Decree of the Housing Construction Promotion Act, which satisfies the requirements for non-taxation (see Supreme Court Decision 2015 (260). 27.25.7.25.7.7.

Meanwhile, according to the previous precedents, if a redevelopment and reconstruction association provides a partnership with a house and appurtenant land, and transfers it after acquiring an apartment house sale right by the time of transfer, the transfer is subject to non-taxation as income tax as a transfer of one house for one household (see, e.g., Supreme Court Decision 93Nu17324, Mar. 8, 1994). However, Article 155(16) of the Enforcement Decree of the Housing Construction Act provides that "the time when a reconstruction association member who transferred an occupancy right should meet the requirements of one house for one household" rather than "the time of transfer of the right to one house for one household" as of the date of approval of a business plan under Article 33 of the Housing Construction Promotion Act, not "the time of transfer of the right to one house for one household," so if a redevelopment and reconstruction association is granted a right to move in due to the implementation of a general reconstruction project, the value of the right to move in has increased considerably compared to the value of the apartment house, so it would be contrary to the purpose of transfer of one house ownership.

Therefore, even if a partner has no other house at the time of transferring the right to move in, and the ownership period of the existing house as of the date of approval of the business plan (in case of removal of the existing house before that date, the date of removal of the existing house), is not less than three years or not less than one year (in case of Article 155(17) of the Enforcement Decree, the right to move in shall be regarded as a "right to acquire real estate" under Article 155(16) of the Enforcement Decree, notwithstanding that the right to move in shall be regarded as a "house" under Article 155(16) of the Enforcement Decree, and the income from the transfer may be exempted from taxation (see Supreme Court Decision 2004Du9456, Mar. 11, 2005).

Therefore, as of September 6, 200, as of September 6, 200, the approval date of the project plan of the reconstruction association, the housing holding period under Article 154 (1) of the Enforcement Decree shall be calculated, and otherwise, in this case, Article 89 (3) of the Act and Article 154 (1) of the Enforcement Decree of the Act, which are non-taxation provisions on "one house for one household", are applied directly, and Article 154 (1) of the Enforcement Decree shall be calculated, including the period until the transfer of the right to move in this case or the removal of the apartment house in this case, the plaintiff's assertion that the holding period of the house should be calculated,

(iii)whether the requirements for "one house for one household" are met;

Furthermore, examining whether the Plaintiff, who transferred the status of being selected as a member of the ○○○ Housing Reconstruction Association as a member of the housing reconstruction association, owned the existing house as of the date of the rebuilding project approval plan under Article 154(1) of the former Enforcement Decree of the Income Tax Act, was the date when the Plaintiff concluded a sales contract and paid the down payment with respect to the apartment of this case on October 8, 1999, and in such a case, Article 155(17)1 of the Enforcement Decree of the Act provides that the term “three years” under the main sentence of Article 154(1) of the Enforcement Decree shall be deemed as “one year”. Thus, as of the date of the rebuilding project approval, the term of possession of the apartment of this case is deemed as one house for one household if it is more than one year, and it is apparent that the Plaintiff did not hold the apartment of this case for one year. Accordingly, it cannot be deemed that the date of the rebuilding project approval falls under one house for one household under the first generation under Article 154(1) of the

(4) The theory of lawsuit

Therefore, the transfer of the right to move in of this case cannot be deemed a transfer of one house for one household which is not subject to the transfer income tax, and the disposition of this case imposed by the defendant on the transfer income of the right to move in is legitimate.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit, and since the judgment of the court of first instance is unfair with different conclusions, the defendant's appeal is accepted and the judgment of the court of first instance is revoked and the plaintiff's claim is dismissed as per Disposition.

Indication of the relevant statutes

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

Article 89 (Non-Taxable Transfer Income)

No income tax on transfer income (hereinafter referred to as “transfer income tax”) shall be levied on the following incomes:

1-2.(Omission)

3. Income accruing from a transfer of one house for one household as prescribed by the Presidential Decree (excluding expensive houses whose prices exceed the standard prescribed by the Presidential Decree) and the appurtenant land within the area calculated by multiplying the area of land to which the building is built by the ratio as determined by region under the Presidential Decree;

4. Income accruing from substituted land for farmland falling under such cases as prescribed by the Presidential Decree.

Article 94 (Scope of Transfer Income)

(1) Transfer income shall be the following incomes 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 the 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);

(b) (hereinafter omitted);

The former Enforcement Decree of the Income Tax Act (amended by the Presidential Decree No. 17825 of Dec. 20, 2002)

§ 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 a household comprised by a resident and his spouse together with the family members living together with him at the same address or same residence as of the date of transfer has one house in Korea as of the date of such transfer, and the retention period of the relevant house is not less than three years (in cases of a house located in a district designated and publicly notified as a prearranged area for housing site development under Article 3 of the Seoul Special Metropolitan City, Metropolitan City, Si, Do, and Si, and Si/Gun/Gu, the retention period of relevant house is not less than three years and the period of residence is not less than one year during the retention period): Provided, That where one household possesses one house in Korea as of the transfer date and falls under any of the following subparagraphs, it shall not be subject to restrictions on the retention period

1.-3. (Omission)

(2) From one to another,

§ 155. Special case of one house for one household

(1) Above (15)

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 owner of an existing house falling under the provisions of Article 154 (1) as of the date of removal of the existing house in case where the existing house is removed before the approval date of an administrative disposition plan under Article 34 of the Urban Redevelopment Act or the approval date of a project plan under Article 33 of the Housing Construction Promotion Act, and where the existing house falling under the provisions of Article 154 (1) is removed as of the date of removal of the existing house, limited to the person who owns the existing house falling under the provisions of Article 154 (1) as of the date of removal of the existing house) transfers the status of selected as an occupant through the association (including the land appurtenant thereto), the said status shall, notwithstanding the provisions of Article

In applying the provisions of the text of Article 154 (1) to one house falling under one of the following subparagraphs, the term “three years” shall be deemed to read “one year”:

1. A house acquired by a person who concludes a sales contract (including the case of public sale or auction) for the acquisition 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 which is constructed by himself from January 1, 1999 to December 31, 1999 (including any house acquired by a member of a housing association under the Housing Construction Promotion Act or an urban redevelopment association under the Urban Redevelopment Act), and for which the approval for use or inspection for use (including approval for temporary use) has been received; and