Whether the transfer of occupancy right 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 claim is dismissed.

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

The defendant's rejection disposition against the plaintiff on May 23, 2008 shall be revoked.

1. Circumstances of the disposition;

가. 원고는 1996. 12. 3. ◇◇시 ◆◆동 623 소재 주공아파트(이하 '이 사건 제1주택' 이라고 한다) 119동 302호를, 2000. 9. 28. 같은 아파트 118동 403호(이하 '이 사건 제 2주택'이라고 한다)를 각 취득하였다.

나. 위 주공아파트의 재건축조합인 ����주공아파트 재건축정비사업조합(이하 '이 사건 조합'이라고 한다)은 ◇◇시장으로부터 2005. 5. 16. 주택재건축사업시행인가를, 2006. 12. 28. 관리처분계획인가를 각 받았다.

C. The Plaintiff acquired the right to purchase each site and apartment house of the first and second houses of this case in accordance with the above management and disposal plan, and on December 28, 2006, transferred the part concerning the first house of this case (hereinafter “the right to move in of this case”) among them, and reported and paid to the Defendant on February 22, 2007 the transfer income tax of 87,703,860 won related to the transfer of the right to move in of this case.

D. On March 27, 2008, the Plaintiff filed a request for correction of transfer income tax with the purport that the transfer of the right to move in in in this case to the Defendant constitutes a non-taxation object of transfer income tax under Article 155(16) of the Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 18850, May 31, 2005; hereinafter “former Enforcement Decree of the Income Tax”). On March 15, 2007, the Defendant rejected the said request for correction on the ground that the transfer of the right to move in in in this case to the Plaintiff did not meet the requirements for non-taxation for one household (hereinafter “instant disposition”).

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

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

2. Whether the disposition is lawful;

A. The plaintiff's assertion

Article 15(16) of the former Enforcement Decree of the Income Tax Act shall apply to the transfer of the right to move in of this case pursuant to Article 4 of the Addenda of the Enforcement Decree of the Income Tax Act (No. 18850, May 31, 2005). In this case, the transfer of the right to move in of this case constitutes the transfer of one house for one household and thus, the transfer of the right to move in of this case is exempt from the transfer income tax.

(b) Related statutes;

It is the same as the entry of the attached statutes.

C. Determination

Article 155 (16) of the former Enforcement Decree of the Income Tax Act provides that the transfer of the association member's relocation right to one house for one household shall be exempted from capital gains tax if the association member's relocation right to the existing house meeting the requirements of one house for one household until the authorization date of the management and disposal plan is granted for a housing redevelopment project, and in the case of a housing reconstruction project, it shall be exempted from capital gains tax if the association member's relocation right to the existing house meeting the requirements of one house for one household until the authorization date of the management and disposal plan is granted. However, Article 15 (16) of the Enforcement Decree of the Income Tax Act amended by Presidential Decree No. 18850 of May 31, 2005 provides that in the case of a housing reconstruction project, the transfer of the association member's relocation right to the existing house meeting the requirements of one house for one household until the authorization date of the management and disposal plan shall be exempted from capital gains tax, notwithstanding Article 1 of the Addenda. Article 4 of the former Enforcement Decree of the Income Tax Act, notwithstanding Article 156 (2).

In order to be subject to non-taxation pursuant to Article 155 (16) of the former Enforcement Decree of the Income Tax Act, the Plaintiff owned the existing house meeting the requirements of one household as of the date of authorization for the implementation of the project, and transferred the association member's relocation right to the existing house. However, as seen earlier, the Plaintiff owned two houses, such as the first and second houses, at the time of May 16, 2005, the date of authorization for the implementation of the housing reconstruction project, and did not meet the requirements of one house for one household. Therefore, the transfer of the right to move into the instant house does not meet the requirements of non-taxation for the transfer income tax of one house for one household, and thus, the instant disposition rejecting the Plaintiff's request for correction of transfer income tax is lawful.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.