(a) In case where a partner of the redevelopment association transfers the right to sell in lots, the calculation of gains from transfer and the concept of transferred assets; (b) Whether the purchase cost of land and buildings within the redevelopment area may be deducted as acquisition value in calculating gains from transfer of the right to sell in lots;

A. The right to purchase a site or building facility to be acquired in accordance with the management and disposal plan by a member of the redevelopment cooperative by providing the previous land and building to the redevelopment cooperative, is a kind of "right to acquire real estate" under Article 23 (1) 2 of the Income Tax Act and Article 44 (4) 2 of the Enforcement Decree of the same Act from the time when the redevelopment project is approved and publicly notified as the ownership of the site or building facilities is carried out until the ownership of the site or building facilities is acquired. In this case, the time of acquisition of the right to sell lots is deemed to be the time when the management and disposal plan is authorized and publicly notified. Thus, it is reasonable to exclude the increased value from gains from the time of acquisition of the previous land and building from the time of acquisition of the right to sell lots to the time of acquisition of the right to sell lots, as well as the transfer income tax is imposed on the income accruing from the transfer of the right to sell lots, "right to purchase a site or building facility to be sold" refers only to the position or opportunity to purchase lots, as well as the site or building facilities scheduled to sell lots.

(b) Where land and buildings within the redevelopment area have been purchased for the purpose of acquiring the right to sell redevelopment, partnership, apartment, etc., the cost of purchase of such land and buildings shall not be deducted as the acquisition value of redevelopment apartment, etc. in calculating the gains from the transfer of the right to sell redevelopment apartment, etc.

(a)Article 23(1)2 of the Income Tax Act, Article 23(4), Article 45(1)1 of the Income Tax Act, Article 44(4)2(b) of the Enforcement Decree of the Income Tax Act, Article 42, Article 44, Article 45, and Article 53 of the Urban Redevelopment Act;

Plaintiff

Head of Mapo Tax Office

Seoul High Court Decision 93Gu23611 delivered on May 4, 1994

The judgment below is reversed and the case is remanded to Seoul High Court.

We examine the grounds of appeal.

1. The right to purchase a site or building facility, the ownership of which is to be acquired in accordance with the management and disposal plan of the redevelopment cooperative by providing the previous land and building to the redevelopment cooperative, is a kind of "right to acquire real estate" under Article 23 (1) 2 of the Income Tax Act and Article 44 (4) 2 of the Enforcement Decree of the same Act, from the time when the development project is conducted to the time when the ownership of the site or building facility is acquired. In this case, the time of acquisition of the right to parcel out is the time when the management and disposal plan is announced (see Supreme Court Decision 93Nu1633 delivered on Nov. 23, 1993). Thus, it is natural that the increase in the value of the previous land and building from the time of acquisition to the time of acquisition of the right to parcel out is excluded from gains from transfer. In addition, when the transfer income tax is imposed on the income accruing from the transfer of the right to parcel out, the "right to purchase the site or building facility to be purchased" can be deemed as not only the right to parcel out.

In addition, in the case of an urban redevelopment project under the Urban Redevelopment Act, a person who owns a parcel of land and a building within the redevelopment area before the public notice of the approval of the parcel out order is provided to the redevelopment cooperative, and as a result, acquires the right to parcel out the redevelopment apartment, etc. first at the time of public notice of the approval of the management and disposal plan, the redevelopment cooperative shall evaluate the value of the land and building at the time of public notice of the management and disposal plan's approval, and appropriate the parcel out price as part of the parcelling-out right such as redevelopment apartment, etc. for the price after the appraisal of the value of the land and building at the time of public notice of the management and disposal plan's approval, or there is a difference in the parcel out price or the parcel out price exceeding the parcel out price (see

Therefore, if the land and buildings within the redevelopment area are purchased for the purpose of acquiring the right to sell the redevelopment association apartment, etc., the purchase cost of the above land and buildings cannot be deducted as the acquisition price of the redevelopment apartment in calculating the transfer margin on the right to sell the redevelopment apartment, etc.

2. On the premise that the Plaintiff’s acquisition of the instant land, etc. within a re-development project zone is for the purpose of acquiring the right to sell apartment units, in calculating gains from the transfer of the right to sell apartment units, the purchase cost of the instant land, etc. shall be considered as acquisition value and such purchase cost shall be deducted from the transfer value of the right to sell apartment units, and the judgment of the court below that the instant tax disposition was unlawful for the gains from transfer calculated without deducting the same, is erroneous, which affected the conclusion of the judgment by misapprehending the legal principles under Article 45(1)1 of the Income Tax Act concerning the calculation

3. Therefore, the judgment of the court below is reversed and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Jeong Jong-ho (Presiding Justice)