Suwon District Court 209Guhap2222 (No. 23, 2009)

Whether the transfer of the right to move into a reconstruction association is exempt from taxation.

In order to be subject to non-taxation, an existing house meeting the requirements of one house for one household as of the date of authorization for the implementation of a housing reconstruction project is owned by a person who owns the existing house meeting the requirements of one house for one household as of the date of authorization for the implementation of the housing reconstruction project and transfers the association member's relocation right for the existing house.

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 rejection disposition against the plaintiff on May 23, 2008 shall be revoked.

1. Circumstances of dispositions;

A. On December 3, 1996, the Plaintiff acquired ○○ apartment 119 Dong 302 (hereinafter “the first house”) located in ○○○-si, 623, and 118 Dong 403 (hereinafter “the second house”) as of September 28, 200, respectively.

B. The reconstruction association of the above ○○ apartment (hereinafter “the reconstruction association of this case”) obtained authorization from the ○○ apartment reconstruction project association of the above ○ apartment (hereinafter “the reconstruction association of this case”) on May 16, 2005 and authorization on the management disposition plan of December 28, 2006.

C. The Plaintiff acquired the right to purchase an apartment lot and apartment lot for the first and second houses of this case, and on December 28, 2006, transferred the part concerning the first house of this case (hereinafter “the right to move in of this case”) to the Defendant on February 22, 2007, and reported and paid capital gains tax of KRW 87,703,860 to the Defendant on February 22, 2007.

D. On March 27, 2008, the Plaintiff filed a request for correction of transfer income tax to the Defendant for refund of KRW 87,703,860 of the transfer income tax on the ground that the transfer of the right to move in in in in the instant case falls under the subject of non-taxation of transfer income tax under Articles 155(16) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 18850, May 31, 2002; hereinafter referred to as the “former Enforcement Decree of the Income Tax Act”). On May 23, 2008, the Defendant rejected the said request for correction on the ground that the transfer of the right to move in in in the instant case did not meet the requirements for non-taxation of one house for one household (hereinafter referred to as the

E. The Plaintiff, who was dissatisfied with the instant disposition, filed an appeal with the Tax Tribunal on August 13, 2008, but was dismissed on December 19, 2008.

[Ground of recognition] Facts without any dispute, Gap evidence Nos. 1, Eul evidence Nos. 1 to 3, the purport of the whole pleadings

2. Whether a disposition is lawful

A. The plaintiff's assertion

The Plaintiff acquired the association member's relocation right on the first and second houses of this case in accordance with the authorization for the implementation of the housing reconstruction project. However, since the authorization for the implementation of the housing reconstruction project was on May 16, 2005, Article 155 (16) of the former Enforcement Decree of the Income Tax Act shall apply to the transfer of the right to move into the housing of this case pursuant to Article 4 of the Addenda to the Enforcement Decree of the Income Tax Act amended by Presidential Decree No. 18850 on May 31, 2005. In this case, the transfer of the right to move into the housing of this case shall be exempted from the transfer

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(1)The imposition of a tax should, in principle, be governed by the provisions of the laws and regulations in force at the time when the tax liability comes into existence, and the fact that the Plaintiff transferred the right to move into the instant case on December 28, 2006 is as seen earlier, and the transfer income tax is abstractly constituted on the last day of the month to which the date of the transfer of the asset belongs. As such, Article 155 (17) of the former Enforcement Decree of the Income Tax Act prior to the amendment by Presidential Decree No. 19890 on February 28, 200

(2)Article 155 (17) of the Enforcement Decree of the Income Tax Act provides that one household possessing one association member's relocation right (hereinafter referred to as "association member's relocation right") under the main sentence of Article 89 (2) of the Act shall be deemed to have been one house for one household under the provisions of Article 154 (1) of the Act, where it transfers the association member's relocation right [limited to the household possessing the existing house falling under the provisions of Article 154 (1) as of the date of authorization of management and disposition plan (where the existing house is removed before the date of authorization, the date of removal of the existing house) under the provisions of Article 48 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents]: first, where there is no other house as of the date of transfer; second, where it falls under the case of possessing one association member's relocation right as of the date of transfer, notwithstanding the provisions of Article 94 (1) 2 (a) of the Act, where it possesses one house other than the one association member's relocation right within one year from the date of acquisition.

(3) Therefore, since the Plaintiff owned the right to move into the instant house and the right to move into the instant house No. 2, and transferred the right to move into the instant house, it does not fall under the non-taxation requirement for one house transfer income tax for one household, the instant disposition rejecting the Plaintiff’s request for correction

3.In conclusion

Therefore, 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.