Whether a housing association has the same status as a registered housing constructor under Article 6 (1) of the former Housing Construction Promotion Act

Article 62 (1) of the former Regulation of Tax Reduction and Exemption Act (amended by Act No. 4165 of Dec. 30, 1989) intends to supply a national housing site at a low price. The purpose of the legislation is to exempt the State, local governments, the Korea National Housing Corporation, and the Korea Land Development Corporation from the obligation to register under Article 6 (1) of the former Housing Construction Promotion Act (amended by Act No. 4530 of Dec. 8, 1992) is to acquire the same status as the registered business entity without the registration, and Article 44 (3) of the former Housing Construction Promotion Act (amended by Act No. 4530 of Dec. 8, 1992) is to ensure that the housing association is also exempted from the same obligation to register, and therefore the housing association also has the same status as the registered business entity and the joint business entity.

Article 6 (1) of the former Housing Construction Promotion Act (amended by Act No. 4530 of Dec. 8, 1992); Article 62 (1) of the former Regulation on Tax Reduction and Exemption Act (amended by Act No. 4165 of Dec. 30, 1989); Article 50 (3) of the former Enforcement Decree of the Regulation on Tax Reduction and Exemption Act (amended by Presidential Decree No. 12881 of Dec. 30, 1989)

Supreme Court Decision 95Nu9426 delivered on November 28, 1995 (the same purport) is Supreme Court Decision 94Nu4547 delivered on December 22, 1995 (the same purport)

Plaintiff (Attorney Kim Ba-young, Counsel for the plaintiff-appellant)

Head of Maritime Affairs Office

Busan High Court Decision 94Gu2404 delivered on June 9, 1995

The judgment of the court below is reversed and the case is remanded to Busan High Court.

We examine the grounds of appeal.

According to the reasoning of the judgment below, pursuant to Article 62(1) of the Regulation of Tax Reduction and Exemption Act (amended by Act No. 4165 of Dec. 30, 1989; hereinafter the same shall apply) and Article 50(3) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 12881 of Dec. 30, 1989; hereinafter the same shall apply), the court below exempted transfer income tax, etc. on the transfer of a construction site of national housing to a housing developer registered under Article 6 of the Korea National Housing Corporation Act or the Housing Construction Promotion Act (amended by Act No. 4530 of Dec. 8, 1992; hereinafter the same shall apply). The court below determined that the transfer income accruing from the transfer of the land to a non-party association is not subject to the exemption of transfer income tax under Article 44 of the Housing Construction Promotion Act.

However, the purpose of Article 62 (1) of the Regulation of Tax Reduction and Exemption Act is to supply a national housing site at a low price, and the State, local governments, the Korea National Housing Corporation, the Korea Land Development Corporation, etc. is to exempt the obligation to register under Article 6 (1) of the Housing Construction Promotion Act from the obligation to register is to acquire the same status as the registered business entity without registration. In addition, the housing association is also exempted from the same obligation to register, and Article 44 (3) of the Housing Construction Promotion Act is deemed to be a registered business entity and joint business entity, so the housing association has the same status as the registered business entity under Article 6 (1)

Therefore, the court below's decision that the non-party association, a housing association, is not a housing construction business operator registered under Article 6 of the Housing Construction Promotion Act, and thus, the transfer income accruing from the transfer of the land of this case to the non-party association is not subject to exemption of transfer income tax, etc. is due to an error of law by misapprehending the legal principles as to the exemption of transfer income tax under Article 62 (1) of the Regulation

Therefore, without examining the remaining grounds of appeal, we reverse the judgment below and remand the case to the court below. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jeong Jong-ho (Presiding Justice)