The nature of the right to purchase a site or building facility to be acquired by the redevelopment partner pursuant to the management and disposal plan by providing the previous land and buildings in the urban redevelopment project;

The right to purchase a site or building facility to be acquired by a partner of the redevelopment partnership in accordance with the management and disposal plan by providing the previous land and building to the redevelopment partnership, as long as it is difficult to regard the parcel of land as the land or the previous land and building within the replotting district under the Land Readjustment and Rearrangement Projects Act and Article 44 (4) 2 of the Enforcement Decree of the Income Tax Act, the transfer margin shall be calculated by deeming the parcel of land as the right to acquire real estate under Article 23 (1) 2 of the Income Tax Act and Article 44 (4) 2 of the Enforcement Decree of the same Act, and in this case, the time of acquisition of the right shall be deemed as the time of public announcement of the management and disposal plan

Article 23(1)2 of the Income Tax Act, Article 44(4)2 of the Enforcement Decree of the same Act, Article 49(1) and Article 49(2) of the Urban Redevelopment Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Lee Gyeong-soo et al., Counsel for plaintiff-appellant)

Plaintiff

Head of the Cleanness Tax Office

Seoul High Court Decision 92Gu14863 delivered on December 16, 1992

The judgment of the court below is reversed.

The case is remanded to Seoul High Court.

The defendant's grounds of appeal are examined.

1. On November 1, 1981, when the plaintiff acquired the land and the building in this case and resided near the land and the building in this case, the former part of Article 3-1 of the Urban Redevelopment Act provides that the land and the building in this case were provided to the redevelopment association for the execution of the urban redevelopment project under the Urban Redevelopment Act, and then the plaintiff purchased the land in this case from the redevelopment cooperative in accordance with the management and disposal plan and then transferred the above apartment ownership to the non-party on June 26, 1989. The defendant provided that the land in this case shall not be deemed to have acquired the ownership of the land in this case under the former part of Article 23 (1) 2 of the Income Tax Act, Article 44 (4) 2 of the Enforcement Decree of the same Act, Article 115 (1) 5 of the same Act, Article 56-5 (10) 16 of the Enforcement Decree of the same Act (amended by Ordinance of the Ministry of Land, Infrastructure and Transport No. 98, Mar. 16, 1998).

2. However, in a case where a land substitution is designated under the Land Expropriation and Rearrangement Projects Act, the landowner and lessee of the previous land may exercise the same right as before the previous land substitution or its part from the effective date of the designation of the land substitution to the date of the land substitution disposition (Article 57(1) of the Land Expropriation and Rearrangement Projects Act), but in a case where a management and disposal plan is determined under the Urban Redevelopment Act, the owner, lessee, etc. of the previous land, etc. cannot use or profit from the land substitution or constructed facilities (Article 47, etc. of the Urban Redevelopment Act) without following the management and disposal plan (Article 47, etc. of the Urban Redevelopment Act), and in a case where a public announcement of the management and disposal plan is made under the Urban Redevelopment Act, there is no room to apply Article 58(1) of the Land Partition and Rearrangement Projects Act with regard to the suspension of use or profit-making of the land which is decided not to designate the land substitution (see Supreme Court en banc Decision 91Da22094, Dec. 22, 1992).

In addition, Article 49 (1) of the Urban Redevelopment Act provides that a person who purchases a site or constructed facility in accordance with a management and disposal plan shall acquire ownership on the day following the announcement of the sale in lots. Article 49 (1) of the Urban Redevelopment Act provides that a site or constructed facility acquired under the former part of paragraph (2) shall be deemed a substitute lot under the Land Readjustment and Rearrangement Projects Act. According to the former part of Article 62 (1) of the Land Readjustment and Rearrangement Projects Act, where a land substitution disposition is publicly announced, the land substitution determined in the land substitution plan shall be deemed to be the previous land from the day following the announcement of the land substitution disposition. However, Article 49 (2) of the Urban Redevelopment Act provides that the land acquired by ownership shall be deemed to be a substitute lot, and it does not purport that Article 49 (2) of the Urban Redevelopment Act provides that the land or constructed facilities to be purchased in lots shall not be deemed to be a site or constructed land to be newly acquired at the next day of the announcement of the sale in lots, and it shall not be deemed that the land or constructed land of this case shall not be deemed a land transfer.

In addition, Article 16 (1) of the Enforcement Rule of the Income Tax Act, which provides the method of calculating gains on transfer when the actual transaction price is unclear, provides only the method of calculating gains on transfer based on the size of land and the reasonable price, and does not provide for the method of calculating gains on transfer of buildings. Therefore, even if a member of the redevelopment association provides the previous land and buildings together or provides only the buildings, it cannot be pointed out that it is impossible to calculate gains on transfer under the above provision.

3. Meanwhile, by analogying Article 49(2) of the Urban Redevelopment Act, there is a view that the transfer margin should be calculated by regarding the transfer of the previous land and buildings that a partner of the redevelopment cooperative transfers the right to purchase a lot of land and building facilities scheduled for parcelling-out before the public announcement of the parcelling-out disposition (i.e., the previous land and building at the time of transfer). However, when the public announcement of the authorization of the management and disposal plan under the Urban Redevelopment Act is made, the right to the previous land and building is converted into the right to purchase a lot of land or building facilities scheduled for parcelling-out, and there may also be cases where the previous land and building are not actually existing at the time of transfer. Therefore, it is difficult to adopt the above view that the transfer margin should be calculated by deeming the existing land and building exists at the time of transfer from the time

4. Article 23 (1) of the Income Tax Act provides that capital gains accruing from the transfer of assets related to this real estate (Article 4 (1) 3) shall be divided into income accruing from the transfer of land or buildings (Article 4 (1) 1) and income accruing from the transfer of rights to real estate as prescribed by the Presidential Decree (Article 44 (1) 2). Article 44 of the Enforcement Decree of the same Act provides that "the scope of land and buildings shall be provided for in Article 23 (2) and (3) of the same Act, "the right to acquire real estate (including the right to acquire building and its appurtenant land when a building is completed)" shall be one of "the right to acquire real estate as prescribed by the Presidential Decree" under Article 23 (1) 2 of the Act, and if a member of the redevelopment association acquires land or construction facilities to the redevelopment association by providing the previous land and building, the right to acquire land or construction facilities to be acquired can only be seen as "the right to acquire the ownership from the date following the announcement of the sale in lots to the previous land or construction facilities, it shall be considered as "the land and the land within 4."

5. Nevertheless, the court below determined that the transfer of apartment sale right of this case constitutes a case where the plaintiff, the owner of the previous land and building, transfers the land within the land reserved for replotting only on the ground that it erred by misunderstanding the purport of the laws and regulations which are the grounds for taxation on income accrued from the transfer of apartment sale right of this case. The court below did not err by misapprehending the legal principles on the right to acquire real estate under Article 49 (2) of the Urban Redevelopment Act or Article 23 (1) 2 of the Income Tax Act and Article 44 (4) 2 of the Enforcement Decree of the same Act, and it is obvious that such illegality has affected the conclusion of the judgment, and therefore, there is a reason to point this out.

6. Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Ahn Yong-sik (Presiding Justice)