Plaintiff (Attorney Kim Young-soo, Counsel for plaintiff-appellant)

Head of Seocho Tax Office

September 22, 2008

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The defendant's refusal to correct the transfer income tax of KRW 75,206,210 to the plaintiff on June 29, 2007 shall be revoked.

1. Details of the disposition;

A. On January 27, 1997, the Plaintiff acquired apartment sales right as a member of the redevelopment association of Dobongcheon 7-1, 1997, and accordingly, entered into a sales contract with the redevelopment association of Gwanak-gu in Seoul Special Metropolitan City (number 1 and apartment lot omitted) and acquired and resided in the apartment on December 18, 199.

B. On September 16, 2002, the non-party, the wife of the plaintiff, acquired the Gangseo-gu Seoul Metropolitan Government ○○dong (number 2 and apartment club omitted). The reconstruction project was conducted for the housing complex to which the above apartment belongs, and the project implementation plan was approved on May 17, 2005, and the management and disposal plan was approved on January 25, 2006, and acquired the reconstruction apartment parcelling-out right (hereinafter referred to as the "sale right of this case").

C. On December 11, 2006, the Plaintiff transferred the apartment of this case to KRW 59,100,000,000,000, and on January 23, 2007, transferred the transfer value and acquisition value of the apartment of this case to the Defendant as the actual transaction value of KRW 59,1,000,000,000 and KRW 267,370,510, and on January 23, 2007, the sales right of this case constitutes an association member's relocation right regarded as a house under Article 89 (2) of the Income Tax Act, and thus, the special provisions on non-taxation of one house per household are not applicable, and the transfer income tax is calculated as KRW 75,206,210 and made a preliminary return on the tax base of transfer income

D. After that, the Plaintiff asserted that the special provisions on non-taxation of one house for one household should be applied, and on June 12, 2007, the Plaintiff filed a request for correction of the purport of seeking refund of KRW 75,206,210 of the capital gains tax paid as above. Accordingly, the Defendant rendered the instant disposition rejecting correction on June 29, 2007 on the ground that the special provisions on non-taxation of one house for one household are not applicable to the case where one household possesses a house and an association member's relocation right, and transfers a house after having the house and an association member's relocation right as it constitutes an association member's relocation right deemed a house under Article 89 (2) of the Income Tax Act.

[Ground of recognition] Facts without dispute, Gap 1, 2, 5, 6 evidence, Eul 1, the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

Article 155 (16) of the Enforcement Decree of the Income Tax Act prior to the amendment by Presidential Decree No. 18850 of May 31, 2005, Article 155 (16) of the Enforcement Decree of the Income Tax Act provides that the right to sell a house corresponding to one house for one household as of the date of authorization for the project implementation of a reconstruction apartment shall be deemed one house for one household, and the apartment acquired by the Nonparty shall be authorized to implement the project on May 17, 2005 and the right to sell the house in this case shall be treated as one house for one household. However, the apartment house acquired by the Nonparty shall be treated as one house for one household after the amendment of Article 15 (16) of the Enforcement Decree of the Income Tax Act by Presidential Decree No. 18850 of May 31, 2005, the point of time of determination as to one house for one household of the reconstruction apartment is changed to the "date of authorization for the management disposal plan," but it does not apply the special provision of this case.

(b) Related statutes;

The entry in the attached Form is as specified in the relevant statutes.

C. Determination

(1) Under the Income Tax Act, where one house for one household equipped with certain requirements is transferred, the special provisions for non-taxation of capital gains tax are stipulated. However, since the number of association members' relocation rights due to redevelopment or reconstruction is not treated as a house, the number of association members' relocation rights in calculating the number of houses held by one household was not considered, but Article 89 (2) of the Income Tax Act (hereinafter "the provisions of this case") is newly established as Act No. 7837 of December 31, 2005, and the association member's relocation rights are deemed as a house since January 1, 2006. Accordingly, the special provisions for non-taxation of one house for one household were not applied to the association member's relocation rights where one household concurrently holds the house and transfers the house, and the special provisions for non-taxation of one house for one household were not applied to the association member's relocation rights before the enforcement date of the management and disposal plan of this case.

(2) As seen earlier, the Nonparty acquired the sales right of this case due to the fact that the management and disposal plan was approved on January 25, 2006 while the Nonparty was holding an apartment. If so, since the sales right of this case was approved after January 1, 2006, the sales right of this case became a house in applying the special provisions on one house for one household pursuant to the instant provisions. Therefore, the Plaintiff et al. owned the sales right of this case deemed as a house and transferred the apartment of this case, and thus, the special provisions on the non-taxation of one house for one household cannot be applied.

(3) Article 155(16) of the Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 18850, May 31, 2005) stating that the Plaintiff shall apply to the transfer of the instant apartment, which is not an association member's relocation right, provides that where one household that does not own a house transfers the association member's relocation right, capital gains tax shall not be imposed on the transfer of the instant apartment, which is not an association member's relocation right, by applying the special provisions on the non-taxation of one house for one household under certain conditions. Thus, the instant apartment

(4) If so, the defendant's disposition of this case is legitimate, and the plaintiff's assertion is without merit, because the special provisions on non-taxation of one household cannot be applied to the transfer of the apartment of this case.

3. Conclusion

Thus, the plaintiff's assertion seeking the cancellation of the disposition of this case is not acceptable and dismissed.

Judges Park Jong-chul