Seoul Administrative Court 2008Gudan12965 ( February 20, 2009)

Seoul High Court Decision 2008-0177 (2008.05)

Date of acquisition of newly-built house under the Restriction of Special Taxation Act

Where a member acquires any portion supplied by a housing association, etc., the date of acquisition of a newly-built house shall be deemed the date of issuance or approval for use of the certificate of use inspection, or where a person other than a member pays the down payment by directly concluding a sales contract for

The contents of the decision shall be the same as attached.

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the plaintiff.

The judgment of the first instance shall be revoked. The defendant's disposition of imposition of capital gains tax of KRW 30,069,150 against the plaintiff on March 9, 2008 shall be revoked.

1. Quotation of judgment of the first instance;

The reasoning for the court’s explanation in this case is as stated in the reasoning of the judgment of the court of first instance, except for the addition of the following judgments as to the Plaintiff’s assertion, and thus, this is cited in accordance with Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act

[Supplementary Judgment]

A. The plaintiff's assertion

원고는, 남편인 함TT이 소유하고 있는 진주시 @@면 @@리 965-1 소재 @@아이파크아파트 104동 603호(이하 '이 사건 아파트'라 한다)가 조세특례제한법 제99조의 3 제1항 제1호에 해당하는 주택이므로 같은 조 제2항에 의하여 소득세법 제89조 제1항 제3호의 1세대 1주택에 해당하고, 따라서 원고를 1세대 2주택인 경우로 보아 양도소득세를 부과한 이 사건 처분은 위법하다고 주장한다.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

Therefore, in order for the apartment of this case to constitute a newly-built house under the said Act, it shall enter into a sales contract and pay the down payment for the first time with a housing developer from May 23, 2001 to June 30, 203, the acquisition period of the newly-built house under the said Act. According to the evidence No. 9-4 of this case, it can be recognized that HaT entered into a sales contract with the Hyundai Industrial Development Co., Ltd. on August 29, 2003 for the apartment of this case and paid part of the down payment. The acquisition date of the apartment of this case is obvious that the acquisition period of the newly-built house under the said Act exceeds the acquisition period of the newly-built house under the said Act, and it does not constitute

Accordingly, it is reasonable to view the date of acquisition of a newly-built house as the date of issuance or approval for use of the certificate of use inspection, and the date of approval for use of the apartment of this case is October 30, 2002. Thus, deeming the date of acquisition of a newly-built house under the aforementioned special taxation law as the date of issuance or approval for use of the certificate of use inspection shall be limited to the case where a member under Article 99-3 (1) of the Restriction of Special Taxation Act acquires the portion of supply from a housing association, etc. from the association member, etc., and a person other than a member of the association, directly concludes a sales contract for the remaining house within the period of acquisition of a newly-built house and pays the down payment (see Supreme Court Decision 2007Du146, May 29, 2008). Since there is no evidence to acknowledge it as to the fact that it is a member of the association under the above provision, or the date of approval for use of the apartment of this case is October 30, 2002.

2. Conclusion

Therefore, the plaintiff's claim of this case shall be dismissed as it is without merit, and the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.