Seoul Administrative Court 2008Gudan14527 ( October 07, 2010)

The provisions of special taxation are not applicable to the transfer of real estate before obtaining authorization for project implementation.

At the time of the transfer of real estate, the non-party company prepared the urban environmental rearrangement project as the owner of the land, but before receiving the authorization for the implementation of the project, so the special provisions on the transfer of real estate are not applicable, so the

2010Nu37294 Revocation of disposition rejecting capital gains tax rectification

XX

O Head of tax office

Seoul Administrative Court Decision 2008Gudan14527 decided October 7, 2010

June 14, 2011

July 5, 2011

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 refusal to correct the transfer income tax for the year 2006 against the plaintiff on August 7, 2007 shall be revoked.

1. The reasoning of the judgment of this court is as follows: (a) the former Restriction of Special Taxation Act (amended by Act No. 8146 of Dec. 30, 2006) (amended by Act No. 8146 of Dec. 30, 2006) is a maid into the former Restriction of Special Taxation Act (amended by Act No. 8146 of Dec. 30, 2006); and (b) the part of the fifth and the second are as stated in the reasoning of the judgment of the first instance; and (c) it is cited as it is in accordance with Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

"C. Determination"

(1) Article 85 subparagraph 5 of the former Restriction of Special Taxation Act (amended by Act No. 8146 of Dec. 30, 2006) and Article 79-2 (1) 9 of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 19888 of Feb. 28, 2007) provide for the provisions of Article 104-2 (1) of the former Income Tax Act (amended by Act No. 8852 of Feb. 29, 2008; hereinafter the same) to calculate the transfer price and acquisition price of real estate within the designated area under Article 104-2 (1) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 8785 of Dec. 21, 2007; hereinafter referred to as the "Urban Improvement Act") to calculate the transfer price before the designation date of the rearrangement area under Article 4 of the former Restriction of Special Taxation Act (hereinafter referred to as the "Enforcement Decree").

Meanwhile, Article 8(3) and (4) of the Urban Improvement Act provides that an urban environment improvement project may be implemented by the owners of an association or land, etc. consisting of landowners, etc., and the Mayor and the head of a Gun may designate the owners of land, etc. as the project implementer and have them implement the rearrangement project. Article 28(1) provides that where a project implementer intends to implement a rearrangement project, he/she shall submit a project implementation report, etc. to the head of the Si/Gun and obtain authorization for the implementation of the project. Article 38 provides that the project implementer may expropriate or use the land, goods, or other rights if necessary to implement the rearrangement project, and Article 85(7) of the Urban Improvement Act provides that a person who implements the rearrangement project without obtaining authorization for the implementation of the project shall

(2) The language and text of the above provisions, the legislative intent of the Urban Improvement Act, in particular, recognizes the right to expropriate real estate necessary for the implementation of a rearrangement project, and even if the transferor transfers real estate to the project implementer, the transfer value and acquisition value cannot be considerably restricted, so the legislative intent of the special taxation provisions is to ease the transfer income tax burden and promote the smooth implementation of a rearrangement project at the same time by allowing the transfer value and acquisition value to be based on the standard market price, and it is in principle impossible to implement a rearrangement project without obtaining the project implementation authorization under Article 28 of the Urban Improvement Act. If the landowner wishes to become the project implementer, the project implementer is specifically determined only when the project implementation authorization was granted under Article 8(4) of the Urban Improvement Act, and it is difficult to specify the project implementer until the project implementation authorization is granted, and even if the landowner transfers the real estate to the landowner prior to the project implementation authorization, it is difficult to view that the special taxation provisions of this case, such as the right to the project implementation authorization, cannot be applied to the land owner before and after the project implementation authorization, and after the project implementation authorization of this case, can be deemed to have been granted.

(3) However, at the time of the transfer of this case, the non-party company was preparing for the urban environmental rearrangement project as the owner of land, etc., but the transfer of this case was prior to obtaining the authorization for the implementation of the project, and thus, the special provisions of this case do not apply (the plaintiff asserted that the non-party company should be deemed to have obtained the authorization for the implementation of the Urban Improvement Act on May 4, 2006, which was notified by the Mapo-gu Office of the measures to respect cultural properties, but the notification of the measures to preserve cultural properties under the Cultural Heritage Protection Act cannot be deemed to have completed the authorization for the implementation of the Urban Improvement Act, and thus,

2. If so, the judgment of the first instance is legitimate, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.