[1] The time of acquisition of a rebuilding association member's right to purchase real estate under the Income Tax Act (the status of being selected as a tenant)

[2] The case holding that where a reconstruction association member transfers an existing house which has not yet been removed after the approval of a management and disposal plan was made under the former Housing Construction Promotion Act, it constitutes a transfer of "right to acquire real estate" rather than a transfer of "real estate" under the former Income Tax Act

[1] A member of a reconstruction association under the former Housing Construction Promotion Act (wholly amended by Act No. 6916 of May 29, 2003) has a right to provide an existing house or site to the association and to purchase a house, appurtenant or welfare facility to be acquired in accordance with the business plan (the status of being selected as a tenant) shall be the right to acquire a real estate under Article 94 (1) 2 (a) of the former Income Tax Act (amended by Act No. 6781 of December 18, 2002) until the ownership of the house, etc. is acquired. In this case, the time of acquisition of the status of being selected as the occupant shall be the time of approval of the business plan under Article 33 of the former Housing Construction Promotion Act, which shall be the same as before the removal of the existing house, or before the resolution of the management and disposal plan is passed at the general meeting of the association members.

[2] The case holding that the transfer of "right to acquire real estate" not "real estate" under the former Housing Construction Promotion Act (amended by Act No. 6916 of May 29, 2003) where a reconstruction association member transferred an existing house that has not yet been removed in the state that the management and disposal plan was not resolved after the approval of the project plan under the former Housing Construction Promotion Act (amended by Act No. 6916 of May 29, 2003)

[1] Article 94 (1) 2 (a) of the former Income Tax Act (amended by Act No. 6781 of Dec. 18, 2002), Article 33 (see Article 16 of the current Housing Act) of the former Housing Construction Promotion Act (amended by Act No. 6916 of May 29, 2003) / [2] Article 94 (1) 2 (a) of the former Income Tax Act (amended by Act No. 6781 of Dec. 18, 2002), Article 33 of the former Housing Construction Promotion Act (amended by Act No. 6916 of May 29, 2003) (see Article 16 of the current Housing Act)

Plaintiff

Samsung Head of Samsung Tax Office

Seoul High Court Decision 2004Nu9120 decided May 12, 2005

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

We examine the grounds of appeal.

A rebuilding association member under Article 94 (1) 2 (a) of the former Housing Construction Promotion Act (amended by Act No. 6916 of May 29, 2003; hereinafter the same shall apply) has the right to purchase the existing housing or housing site and appurtenant or welfare facilities (hereinafter referred to as the "housing, etc.") to be newly built by the association to provide the existing housing or housing site and to be acquired in accordance with the business plan (the status of being selected as a tenant) from the association. In this case, the time of acquisition of the selected status as an occupant falls under the "right to acquire the real estate" under Article 94 (1) 2 (a) of the former Income Tax Act (amended by Act No. 6781 of December 18, 2002; hereinafter the same shall apply) until the ownership of the housing, etc. is acquired, it shall be deemed that the time of acquisition of the status as the occupant has obtained approval of the business plan under Article 33 of the former Housing Construction Promotion Act, and it shall not be deemed that it was before the

In the same purport, the court below held that the transfer margin should be calculated based on the actual transaction price under the proviso of Article 96 (1) 2, Articles 97 and 100 (1) of the former Income Tax Act on the ground that the transfer of the apartment of this case constitutes a transfer of the right to acquire real estate under Article 94 (1) 2 (a) of the former Income Tax Act, since the transfer of the apartment of this case constitutes a transfer of the right to acquire real estate, and the payment or receipt of liquidation money for the new house, etc. has not been confirmed at the time of the transfer of the apartment of this case, since the apartment of this case is already used for residential purposes without yet to be demolished, since the apartment of this case was provided to the reconstruction association and approved for the housing construction project plan under the former Housing Construction Promotion Act, so long as the right to newly constructed apartment of this case was converted into the right to purchase the newly built apartment of this case. There is no error in the construction of related Acts and subordinate statutes and the calculation method of transfer margin

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

Justices Kim Yong-dam (Presiding Justice)