Seoul Administrative Court 2008Gudan14459 ( November 25, 2009)

National High Court Decision 2007west 4569 (Law No. 14, 2008)

Where real estate is transferred before obtaining authorization for project implementation, special provisions shall not apply.

At the time of the transfer of real estate, the non-party company was preparing an urban environment rearrangement project, and obtained authorization for project implementation after the transfer, and therefore does not fall under the special taxation provisions

209Nu4025 Revocation of disposition rejecting capital gains tax rectification

right XX

O Head of tax office

Seoul Administrative Court Decision 2008Gudan14459 Decided November 25, 2009

July 21, 201

September 1, 2011

1. Revocation of a judgment of the first instance;

2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

The Defendant’s refusal to rectify the transfer income tax of KRW 361,178,862 on July 30, 2007 against the Plaintiff on July 30, 2007 is revoked.

2. Purport of appeal

The same shall apply to the order.

1. Basic facts

This Court's explanation is consistent with the reasoning of Paragraph 1 of the judgment of the court of first instance, except for the case where "before it has been amended or deleted" under Paragraph 2 of Article 13 of the judgment of the court of second instance as "before it has been amended". Thus, this Court shall accept it as it is in accordance with Paragraph 2 of Article 8 of the Administrative Litigation Act and Article 11420 of the Civil Procedure Act.

2. The parties' arguments and issues

The court's explanation on this part is the same as the reasoning of the judgment of the court of first instance, and therefore, it cited this part in accordance with Article 8 (2) of the Administrative Litigation Act and the text of Article 420 of the Civil Procedure Act.

3. Relevant statutes;

Attachment 'Related Acts and subordinate statutes' shall be as shown.

4. Determination

Article 85 subparagraph 5 of the Restriction of Special Taxation Act and Article 79-2 (1) of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 19888 of Feb. 28, 2007) provide that where a resident acquires real estate within a designated area under Article 104-2 (1) of the former Income Tax Act before the designation date of a rearrangement zone under Article 4 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"), and transfers (including cases of expropriation) before December 31, 2006 to the relevant project operator under the Urban Improvement Act (including cases of expropriation), the transfer value and acquisition value may be based on the standard market price in calculating the transfer income tax base

Meanwhile, Article 8(3) and (4) of the Urban Improvement Act provides that an urban environment improvement project may be implemented by an association of owners of a plot of land, etc. or by owners of a plot of land, etc., and the head of a Si/Gun may designate owners of a plot of land, etc. as a project implementer if there are certain reasons to implement a rearrangement project. Article 28(1) provides that where a project implementer intends to implement a rearrangement project, he/she shall submit a project implementation plan, etc. to the head of a Si/Gun and obtain authorization for project implementation, and Article 38 provides that a project implementer may expropriate or use land, goods or other rights if necessary to implement a rearrangement project. Article 85(7) of the Urban Improvement Act provides that a person who implements a rearrangement project

The text and purport of the above provisions, especially the Act on the Maintenance and Improvement of Urban Areas, recognize a project implementer’s right to expropriate real estate, and even if the transferor transfers the real estate to the project implementer, the transfer value and acquisition value are bound to be considerably restricted by the standard market price. Therefore, the legislative intent of the special taxation provisions in this case is to ease the transfer income tax burden and facilitate implementation of the rearrangement project at the same time, and it is in principle impossible to implement the rearrangement project without obtaining an authorization for project implementation under Article 28 of the Act. Where the owner of land, etc. wishes to be the project implementer, unless there are special circumstances such as the designation of the project implementer under Article 8(4) of the Act on the Maintenance and Improvement of Urban Areas, it is difficult to specify the project implementer until the authorization for project implementation is granted, and it is difficult to view that the expropriation authority granted to the project implementer is difficult to be granted at the time of project implementation authorization until the project implementation authorization is granted, and the Act on the Maintenance and Improvement of Urban Areas, etc. can only be applied to the owners of land, etc. before the project implementation authorization after the project implementation authorization is granted.

In this case, in full view of the purport of the argument as a whole, the plaintiff acquired the real estate of this case on September 2, 1996 and then decided to sell it to the non-party company, and transferred the real estate after receiving payment on November 6, 2006. The Seoul Gu was designated as a designated area under Article 104-2 (1) of the former Income Tax Act as of June 30, 2005, after the designation of the real estate of this case as part of PPO 1, EO 2006, the land of this case was designated and announced as an urban environment improvement zone under the Urban Improvement Act of March 13, 2006. Since the non-party company failed to implement the urban environment improvement project of this case on December 22, 2006 after the transfer of the real estate of this case, the non-party company did not request the approval of implementation of the urban environment improvement project of this case to the non-party company of this case as the implementer of the land of this case's urban environment improvement project.

5. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is unfair, and the defendant's appeal is accepted and the judgment of the court of first instance is revoked and the plaintiff's claim is dismissed. It is so decided as per Disposition.