Early High Court Decision 2009Du4057 (Law No. 21, 2010)

Acquisition value of migrants' housing site sale rights;

A person who has first been granted the right to purchase a resettled housing site shall acquire such right at the time of determination of the person subject to relocation measures, and such right shall not be deemed to have been paid since it was given as a part of livelihood compensation, separate from the transfer price for the housing, etc. offered for the relevant

The contents of the decision shall be the same as attached.

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1. The plaintiff's claim is dismissed.

2. The plaintiff bears the costs of lawsuit.

The Defendant’s disposition of imposition of capital gains tax of KRW 200,901,810 for the taxable year 2007 against the Plaintiff on August 1, 2009 is revoked (the date of notification of evidence No. 1 and No. 2 No. 1).

쇠鹬 쇠鹬 3000 쇠鹬 3000

1. Details of the disposition;

A. The Plaintiff received compensation for expropriation from the project implementer as the instant housing located in AAB BB-GuCC 471-3 was incorporated into a housing site development project district and expropriated the instant housing site development project. On September 15, 2005, the Plaintiff moved to D.D.

B. On January 11, 2007, the Plaintiff became final and conclusive as a person subject to relocation of a housing site for the said zone. On March 2007, the Plaintiff entered into a sales contract on the instant migrants’ housing site and paid KRW 41,019,000 for the sales price of KRW 84-3 square meters for the said project district, which is the land for the said migrants’ housing site, at KRW 410,190,000. On September 27, 2007, the Plaintiff transferred to HongG the sales right of KRW 351,00,000 for the instant migrants’ housing site, which is a right to the said migrants’ housing site.

C. Meanwhile, in filing a voluntary report on transfer income tax, the Plaintiff reported the transfer value of the instant migrants’ housing site as KRW 121,019,000, acquisition value of KRW 41,019,000, gains of transfer 80,000, and gains of transfer. The Deputy Director of the Central District Tax Office confirmed that the transfer value of the instant migrants’ housing site was KRW 351,000,000, and notified the Plaintiff of the acquisition value of KRW 41,019,000, gains of transfer, KRW 309,981,00, and KRW 300,000, gains of transfer, KRW 309,981,00 on August 1, 2009 (hereinafter “instant disposition”). Based on this, the Defendant notified the Plaintiff of KRW 200,901,81,00 for transfer income tax for the year 207 (hereinafter “instant disposition”).

D. Although the Plaintiff filed an appeal with the Tax Tribunal on October 28, 2009, the Tax Tribunal dismissed the Plaintiff’s appeal on June 21, 2010.

[Reasons for Recognition] Facts without dispute Gap's entry of evidence Nos. 1. 4 and 1. 4, and the purport of the body before pleadings

2. Summary of the plaintiff's assertion

(a) AA printing school site development project zone shall be designated and published for public inspection on the site of the prospective housing site development zone (the date of designation and public inspection).

10.17.) From 1 year prior to the date of conclusion of the contract or the date of expropriation ( October 17, 2000) to the date of conclusion of the contract, a person who has continuously owned and resided in the relevant project district and has received compensation for residential buildings owned in the relevant project district and supplied the same to the person who emigrates due to the implementation of the relevant housing site development project. The supply price was based on 265 square meters per household. The supply price was sold in lots at the development cost after deducting the amount to be borne by the project operator pursuant to Article 78(4) of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects. However, in the case of a parcel on which the supply area of a resettled housing site exceeds 26

(b) The amount of sales of the right to purchase housing sites by a project operator to be a person subject to relocation measures is sold in lots at a price lower than the market price in accordance with relevant laws.

C. At the time the Plaintiff acquired the land for the instant migrants, the market price of the said land is KRW 936,342,180 ( KRW 3,467,934 at the market price of 270 square meters per m270 square meters per m270 square meters sold by the Plaintiff). 526,152,180, which is calculated by subtracting the sale price of the instant land for the instant migrants from the market price, is not the income subject to taxation, but the amount of compensation for living sold to the person subject to relocation measures according to the relocation measures.

(d) The amount of living compensation shall not be taxed since it is not an income, and the transfer income tax shall be calculated by deducting the transfer value from the transfer value as necessary expenses, including the structural acquisition value of the small income tax.

E. Therefore, 567,171,180 won, including the above 526,152,180 won and the down payment 41,019,000 won paid by the Plaintiff, should be deducted from the acquisition value among necessary expenses. In such calculation, the instant disposition was rendered illegally on the ground that the transfer margin 216,171,180 won and the transfer margin 216,171,180 won have occurred.

F. As one of the relocation measures, the difference between the market price and the market price due to the sale of the resettled housing site was taxed without any basis, notwithstanding that the difference is not an income.

3. Determination

A. Where the transferee of the right to sell a housing site sells the housing to the housing site creation business operator and concludes an individual sales contract on the basis of the right to sell the housing site of the migrants and imposes capital gains tax on the income accrued from the transfer of the right to sell the housing site of the migrants before the payment of the purchase price is made, the first person who is granted the right to sell the housing site of the migrants at the time of confirmation and determination of the person subject to the right to sell the housing site of the migrants. In addition, such right is granted as a part of living compensation apart from the transfer price of the housing provided for the relevant public project, and the acquisition price therefor is not deemed to have been paid. Even if the transferee of the right to sell the housing site of the migrants concludes an individual sales contract on the specific housing site between the housing site creation business operator and the purchaser of the right to sell the housing site and pays the purchase price, such a purchase price is not included in the acquisition price of the right to sell the housing site of the migrants, barring special circumstances (see, e.g., Supreme Court Decision 95Nu1707,

1) As the Constitution and the Act on the Acquisition of Land, etc. for Public Works and the Compensation for Land, etc. for Expropriation is the basic concept of complete compensation, the market price and expropriation compensation for the expropriated housing are in a normative aspect, and the market price and the sale price of the expropriated housing site must also be in a normative aspect. The deduction of the amount to be borne by a project operator under Article 78(4) of the Act on the Acquisition of Land, etc. for Public Works and the Compensation for Land, Etc. is premised on such a relationship. Even if there are cases where the relationship between the market price and expropriation compensation of the expropriated housing, and the market price of the migrants housing site and the sale price thereof is not recognized in a realistic aspect, such basic ideology and norms do not lose their meaning. Even if there are factors to make such a difference different from the actual sale price and reality, in order to reflect such difference in the process of calculating capital gains, there should be explicit regulations in the tax law. However, in accordance with the aforementioned tax law, the acquisition price shall be treated differently as alleged by the Plaintiff, and there is no provision to treat necessary expenses otherwise.

2) In cases where capital gains have occurred due to the transfer of so-called sales right, which is a right to purchase a housing site for migrants, there must be explicit provisions in the tax law in order to treat the acquisition value and necessary expenses differently from other capital gains. However, in light of the aforementioned circumstances, the acquisition value shall be treated differently as alleged by the Plaintiff and there is no provision

B. The instant disposition that calculated the acquisition value and necessary expenses in the same manner as the transfer of the general right of sale is lawful, cannot be the price for the housing where the right of sale of the migrants is accepted. The tax laws and regulations differently deal with the acquisition value as alleged by the Plaintiff, and there is no provision dealing with necessary expenses.

4. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit.