National High Court Decision 2007west 4138 (No. 14, 2008)

Where a transfer is made before the designation as an urban environmental improvement zone, the special taxation for real estate for public works shall not be applied.

Even though special taxation on real estate for public works in the designated area may be applied to the land transferred to the project implementer after being designated as an urban environmental improvement zone and before the approval for the project implementation is granted, the special taxation shall not be applied to the transfer before

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

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1. The plaintiff's claim is dismissed.

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

The defendant's rejection disposition against the plaintiff on July 30, 2007 regarding the transfer income tax of 90,530,271 won belonging to the year 2006 shall be revoked.

쇠鹬 쇠鹬 3000 쇠鹬 3000

1. Basic facts

(a) Details of the disposition;

(1) 원고는 2004. 8. 25.경 서울특별시 AA구 BB동 389-23 대 92.6㎡ 및 같은 동390-24 대 82.3㎡의 각 1/2지분(이하 '이 사건 토지'라 한다)을 취득하였다. 원고는 2004. 12. 10.경 주식회사 ◆◆◆◆◆와 사이에 이 사건 토지에 대한 매매계약을 체결 하였고, 그 후 2005. 5. 4.경 소외 주식회사 PPPPPPPPP(이하 '소외 회사'라 한다)가 종전 약정 매매대금의 액수를 그대로 유지한 채 매수인의 지위를 승계함에 따라 2006. 12. 28. 소외 회사로부터 위 매매잔대금을 지급받고 이 사건 토지를 양도하였다.

(2) On February 28, 2007, the Plaintiff calculated capital gains tax at KRW 97,633,026 by calculating the acquisition value and transfer value of the instant land as the actual transaction value on the grounds that the instant land falls under real estate located within the speculative designated area, and calculated capital gains tax at KRW 97,63,026 on the basis of the scheduled return and

had been.

(3) Thereafter, the plaintiff on May 30, 2007, and the defendant on May 30, 2007 the Restriction of Special Taxation Act (the "Special Taxation Act").

12. According to Article 85 of the Restriction of Special Taxation Act (amended by Act No. 8146 of 30, hereinafter referred to as the “Special Taxation Act”), the transfer value and acquisition value may be determined based on the standard market price as the subject of the special taxation of transfer income tax under Article 85 (hereinafter referred to as the “special taxation provision of this case”). In calculating the transfer income tax based on the standard market price, the transfer income tax amount was KRW 7,102,755, and accordingly, the difference between the initially paid tax amount and the initially paid tax amount was claimed for correction.

(4) Accordingly, on July 30, 2007, the Defendant rendered the instant disposition rejecting the Plaintiff’s request for correction on the ground that the Plaintiff was not designated as the transferee company at the time of transfer as the public interest project implementer, and that the Plaintiff’s request for correction was not subject to the provisions of the instant special taxation.

(b) Designation of an urban environmental improvement zone and authorization for project implementation;

(1) The Seoul AAgu to which the land of this case belongs is a housing speculation area on May 29, 2003, and 2005.

6. On November 18, 2003, the Seoul Special Metropolitan City Notice No. 2003-374 was made on November 18, 2003, and the designation of the urban environment improvement zone of GG1 as the urban environment improvement zone of GG1 in the Seoul Special Metropolitan City Notice No. 2006-87 on March 13, 2006.

(2) The non-party company shall implement the improvement project within GG1 zone, which is an urban environmental improvement zone.

On May 4, 2006, the head of the Seoul Special Metropolitan City AA was notified of measures to preserve cultural heritage in relation to an urban environment improvement project on May 16, 2006. On June 16, 2006, he was notified of conditional decision on traffic impact assessment by the Seoul Special Metropolitan City Traffic Impact Deliberation Committee. On June 29, 2006, he was notified of the results of prohibited acts and cancellation of facilities in the school environmental sanitation cleanup zone by the Seo-gu Seoul Metropolitan Government Office of Education. On June 29, 2006, on June 30, 2006, he received the results of deliberation by the Construction Committee from the head of the Seoul Special Metropolitan City Office of Education.

(3) After that, the non-party company is the head of the AAA on December 22, 2006 urban environmental improvement zone of GG1.

On May 2007 to May 5, 2007, the head of AA made an application for authorization to implement the urban environmental improvement zone where the non-party company is the project implementer.

[Reasons for Recognition] Nos. 1 through 3, 5, 6, and 1

Statement, the purport of the whole pleading

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The project implementer under the special taxation provisions of this case does not necessarily limit the person who has obtained the authorization of the implementation of the rearrangement project, and the Plaintiff acquired the land in this case before the designation of the rearrangement zone, which is the acquisition time under the special taxation provisions of this case, and transferred it to the non-party company, which is the urban environment rearrangement project implementer, on December 28, 2006, within the transfer date stipulated in the special taxation provisions of this case. Thus, the transfer income tax of this case may be calculated based on the standard market price by applying the special taxation rules of this case. Accordingly, since the Defendant cannot be regarded as the project implementer because the non-party company, the transferee of this case, was the transfer date at the time of

for the reason that the instant disposition was unlawful.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

(1) Details and legislative intent of the special taxation provision of this case

Article 96 (1) of the former Income Tax Act (amended by Act No. 7837, Dec. 31, 2005; Act No. 96 (1) of the Income Tax Act (amended by Act No. 7837, Jan. 1, 2006; Act No. 96 (2) of the same Act) provides that the transfer value of assets shall be determined by the "standard market price at the time of transfer of such assets". However, Article 96 (2) of the same Act provides that the transfer value of real estate shall be determined by the Presidential Decree No. 9 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, which is similar to that at the time of transfer of such assets shall be determined by the "standard market price at the time of transfer of such assets". However, Article 85 (1) of the Restriction of Special Taxation Act provides that the transfer value of real estate within the area designated by the Presidential Decree No. 9 of the Housing Site Development Promotion Act shall be determined by the "Act No. 10 of the date of the transfer of such real estate within the designated area. 1. 3.

In full view of the title and contents of the special taxation provisions of this case, each of the special taxation provisions of this case, and each of the subparagraphs of attached Table 79-2(1) of the Enforcement Decree of the Restriction of Special Taxation Act, all of the projects planned by the law stipulated in the subparagraphs of attached Table 7 of the Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor, the project operator recognized the right to expropriate based on the Act on the Acquisition of Land, etc. for Public Works and the Compensation therefor, and the fact that the decision-making authority on the transfer value of the real estate in the business planned by the above law has no choice but to be considerably restricted even if the transferor of the real estate reaches the project operator through consultation, the purpose of legislation of the special taxation provisions of this case is to relieve the taxpayer's tax burden by allowing the transfer value to be based on the standard market price, not

Facilitating enforcement (see Supreme Court Decision 2006Du16779, Dec. 27, 2007).

(2) The Decree on the Restriction of Special Taxation does not separately define the project implementer, including the scope of the project implementer under the Act on the Special Taxation and Residential Environment Dispute Concerning the Special Taxation Provisions, and the city and the city, and

Article 2 subparag. 8 of the Act on the Maintenance and Improvement of Residents (amended by Act No. 8785 of Dec. 21, 2007; hereinafter referred to as the "Act on the Maintenance and Improvement of Residents' Areas and Dwelling Conditions for Residents") provides that a project implementer means a person who implements a rearrangement project under Article 2 subparag. 8, and Article 8(3) provides that an urban environment improvement project may be implemented by a cooperative or land owner or jointly with persons who meet specific requirements, such as a Mayor/Gun, housing construction, etc., Korea Land Corporation, and a constructor, etc. with the consent of a majority of the union members or land owners. Article 28(1) provides that where a project implementer intends to implement a rearrangement project, he/she shall submit a project implementation plan, etc. to obtain authorization for project implementation from the head of the Si

the Commission.

Considering the legislative intent of the provisions of the special taxation of this case and the above provisions of the Do Government Act, the special taxation provisions of this case shall apply in cases where real estate within the urban environment improvement zone is transferred to the project implementer after being designated as an urban environment improvement zone and the implementation of the urban environment improvement zone is transferred to the project implementer in cooperation with the project implementation before the project implementation approval is granted.

However, in light of the legislative intent and provisions of the special taxation of this case, in order for the real estate transfer of the owner of the real estate in the rearrangement zone to fall under the “cases where the real estate transfer to the relevant project implementer is transferred by the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects” or any other Act before the project implementation approval is granted, the relevant real estate is required to be transferred for public interest purposes for the public projects planned by various Acts and subordinate statutes under the special taxation of this case. Whether the real estate is transferred for public interest purposes should be determined by comprehensively taking into account not only whether the transferee is the relevant public project implementer at the time of transfer, but also whether the transfer contract is the relevant public project implementer at the time of transfer, when the area to which the relevant real estate belongs is designated as the relevant public project zone, and whether

(3) Whether the transfer of the instant land is subject to the special taxation provisions of this case

원고가 2004. 12. 10.경 주식회사 ◆◆◆◆◆와 사이에 투기지정지역 안의 이 사건 토지에 대한 매매계약을 체결하였고, 그 후 2005. 5. 4.경 소외 회사가 종전의 약정 매매대금 액수를 그대로 유지한 채 매수인의 지위 및 권리 ・ 의무를 승계한 사실, 그런 데 이 사건 토지가 위치한 AA구 GG 1구역이 2006. 3. 13. 비로소 도시환경정비구역 으로 지정 ・ 고시된 사실, 그 후 소외 회사가 도시환경정비사업 시행계획을 수립하는 등 사업시행자로서 활동을 한 사실은 위에서 본 바와 같은바, 원고가 2004. 12. 10.경 및 2005. 5. 4.경 이 사건 토지에 관한 매매계약을 체결하거나 소외 회사가 수인의 지위를 승계할 당시 AA구 GG1구역이 도시환경정비구역으로 지정조차 되지 않은 사 정에 비추어 보면, 원고가 이 사건 과세특례규정에 규정된 도정법 등 여러 법률이 예정하는 공익사업을 위한 공익목적으로 매매가액에 관한 의사결정권한을 제한받는 상태 에서 소외 회사에 이 사건 토지를 양도하였다고 보기 어렵다. 따라서 단지 소득세법상 양도시기로 보는 이 사건 토지의 잔금청산일인 2006. 12. 28. 당시 소외 회사를 도정법 상의 사업시행자로 볼 수 있다는 사정만으로는 원고가 이 사건 과세특례규정에 규정된 도정법이나 그 밖의 법률에 의하여 소외 회사에게 이 사건 토지를 양도한 것이라고 할 수 없다.

Ultimately, the defendant's disposition of this case is legitimate on the ground that the special taxation provision of this case cannot be applied to the transfer of the land of this case.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.