Whether a member's house approved for use after the expiration of the acquisition period of a newly-built house is eligible;

With respect to a newly-built house of the redevelopment association, etc. with the share of the association members in lots and the share of the general sale, where the general share of the newly-built house is located within the acquisition period of the newly-built house, the house of the association members shall be eligible for reduction

Special Taxation Control Act (amended by Act No. 6762, Dec. 11, 2002) Article 99-3 (1) 1

Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 17458, Dec. 31, 2001; Presidential Decree No. 17829, Dec. 30, 2002)

1. The defendant's disposition rejecting the correction of capital gains tax against the plaintiff on October 4, 2005 shall be revoked.

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

The same shall apply to the order.

1. Details of the disposition;

A. On April 28, 2001, the association of ○○○○ apartment reconstruction association (hereinafter “the association of this case”) entered into a general sales contract with respect to the remaining 254 households remaining after supplying 254 households among the above ○○○○○○○ apartment units to the members of the association, after obtaining approval for the project plan for the reconstruction of ○○○○ apartment units located in ○○○○○○○○○○○ Dong 670, 670, and constructed 7 ○○○○○○○○○○○ on the above site, and obtained approval for the use on January 28, 2005.

B. On August 11, 1995, the Plaintiff acquired and owned ○○○○○○○○○○○ apartment, 670, 801, 1995, ○○○○○○○○ apartment, 670, 801, and, upon which a reconstruction project was implemented, invested in the instant association. After having sold the apartment from the instant association the said ○○○○○○○○○○○○○○○○○○○○ 101, 1603, 1603 (hereinafter “the instant apartment”), completed the registration of ownership preservation on March 2, 2005, and transferred the instant apartment to ○○○○○○○ on May 10, 2005, and voluntarily paid KRW 441,428,756 to the Defendant as capital gains tax following the transfer of the instant apartment.

C. On December 27, 2005, the Plaintiff filed a request for correction of the amount of capital gains tax paid as above with the Defendant by asserting that the apartment of this case constitutes reduction and exemption of capital gains tax under Article 99-3 (1) 1 of the former Restriction of Special Taxation Act (amended by Act No. 6762 of Dec. 11, 2002; hereinafter referred to as the “former Act”).

D. As to this, the Defendant rendered the instant disposition rejecting the Plaintiff’s request for correction on October 4, 2005 on the premise that the approval for use of the instant apartment falls under the “newly-built house constructed by himself” under Article 99-3(1)2 of the Restriction of Special Taxation Act, on the ground that the approval for use of the instant apartment was not made within the newly-built house acquisition period (from May 23, 2001 to June 30, 2003) and did not meet the requirements for reduction and exemption under the above provision.

[Ground of Recognition: Facts without dispute, Gap 1, 2, 3 evidence, Gap 4-1, 2, Gap 5, 6 evidence, Eul 1, 2]

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The association of this case constitutes an acquirer of newly-built house subject to reduction or exemption of capital gains tax pursuant to Article 99-3 (1) 1 of the former Act and Article 99-3 (3) 2 of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 17458 of December 31, 2001; hereinafter referred to as the "former Enforcement Decree"), on the premise that the apartment of this case constitutes a newly-built house subject to reduction or exemption of capital gains tax pursuant to Article 99-3 (1) 2 of the Restriction of Special Taxation Act, under the premise that the apartment of this case constitutes a newly-built house under Article 99-3 (1) 2 of the Restriction of Special Taxation Act after its approval for use was newly established and failed to meet the requirements for reduction or exemption under the above provision.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(1) Whether a newly-built house constitutes a newly-built house under Article 99-3(1)1 of the former Act

If a member of a housing association acquires a house through the redevelopment association because the house constitutes a newly-built house built by him/her and transfers the house, the member may be exempted from capital gains tax only when he/she has obtained approval for use or inspection for use from May 23, 2001 to June 30, 2003 under Article 99-3 (1) 2 of the former Act, and in cases of a newly-built house acquired from a housing constructor, if he/she first concludes a sales contract and pays the down payment within the newly-built house acquisition period under Article 99-3 (1) 1 of the former Act, even if he/she has received the approval for use or inspection for use after the newly-built house acquisition period.

However, Article 99-3 (1) 1 of the former Act provides that a house acquired through a house and prescribed by the Presidential Decree constitutes a newly-built house under Article 99-3 (1) 1 of the former Act. Article 99-3 (3) 2 of the former Enforcement Decree setting the scope of the above house provides that if a housing association directly concludes a sales contract for the remaining house remaining after the sale to its members and received down payment within the newly-built house acquisition period, it constitutes a house acquired through a housing association under Article 99-3 (1) 1 of the former Act, which has been approved for use or inspection after the expiration of the new house acquisition period, and is prescribed by the Presidential Decree. Thus, if a housing association has concluded a sales contract with a person other than its members and received down payment within the newly-built house acquisition period, the house acquired by its members may be reduced or exempted from the capital gains tax under Article 99-3 (1) 1 of the former Act, and if a newly-built house or inspection for use is conducted within the newly-built house acquisition period or equity period for its members.

이 사건의 경우를 보건대, 위 인정사실에 의하면, 이서건 조합은 주택건설촉진법에 의한 주택조합이고, 원고는 이 사건 조합의 조합원으로서 주택조합을 통하여 신축주택을 취득하였으며, 이 사건 조합은 신축주택취득기간 내에 조합원들에게 분양ㅎ하고 남은 잔여주택에 대하여 조합원외의 자와 매매계약을 체결하여 계약금을 납부 받은 사실이 있는바, 그렇다면, 위 주택은 신축주택취득기간이 경과한 2005. 1. 28. 사용승인을 받았다 하더라도 구 시행령 제99조의3 제3항 제2호에 의하여 구법 제99조의3 제1항 제1호상의 신축주택에 해당한다고 할 것이므로 원고가 취득일로부터 5년 이내에 이 사건 아파트를 양도한 이상 구법 제99조의3 제1항 본문에 의하여 양도소득세 전액을 감면받는다 할 것이다.

(2) Judgment on the defendant's assertion

(A) In light of the fact that Article 99-3 (3) 2 of the former Enforcement Decree provides that a house acquired from a housing construction proprietor shall be interpreted within the scope of delegation, and it shall be interpreted within the scope of delegation, and that an exception to fair taxation is provided, etc., a house under the above former Enforcement Decree shall be limited to a house acquired by a member from a housing association, etc. as a general buyer. However, the above provision argues that a house should be interpreted as a "house acquired by a member from a housing association, etc." However, the interpretation of tax law should be interpreted in accordance with the legal text unless there are special circumstances, and the interpretation of tax law shall be interpreted in accordance with the principle of no taxation without a reasonable reason, and it shall not be permitted as it goes against the principle

(B) Next, the defendant asserts that since the approval for use was obtained on January 28, 2005 after the new acquisition date without obtaining the approval for use as of December 11, 2002 from the date of entry into force of the Restriction of Special Taxation Act amended by Act No. 6762, Dec. 11, 2002 (hereinafter referred to as the "new Act"), it shall not be subject to the old Act under Article 29 of the Addenda of the new Act, but shall be subject to the new Act. Therefore, according to Article 9-3 (1) and Article 99-3 (1) of the Enforcement Decree of the new Act amended by Presidential Decree No. 17829, Dec. 30, 202 (hereinafter referred to as the "new Enforcement Decree") and Article 89-3 (1) and Article 65 (1) of the Income Tax Act (amended by Act No. 6781, Dec. 18, 2002) and its transfer does not fall under the actual transaction price at the Seoul newly-built house.

살피건대, 신법 제99조의3 제1항 및 신시행령 제99조의3 제1항, 위 2002. 12. 18. 개정된 소득세법 제89조 제3호, 2002. 12. 30. 개정된 소득세법 시행령 제156조 제1항과 그 각 개정 전의 규정 등에 의하면, 종래에는 구법 제99조의3 제1항 등의 규정에 의하여 지역적인 제한 없이 주택의 전용면적이 일정한 규모 이상이고, 양도 당시 실지거래 가액이 6억 원을 초과하는 고급주택만을 양도소득세 감면대상인 신축주택에서 제외하였는데, 위와 같은 법령 개정 후의 신법 제99조의3 제1항 등의 규정에서는 부동산가격이 급등하거나 급등할 우려가 있는 서울을 비롯한 수도권의 과천, 분당, 일산, 평촌, 산본, 중동 등의 신도시지역에 소재하는 주택과 양도 당시 실지거래가액이 6억 원을 초과하는 고가주택을 양도소득세 감면대상에서 제외하기로 하면서, 다만 신법 부칙 제29조에서 경과조치로, 신법 시행 전에 구법 제99조의3 제1항의 규정에 의하여 주택건설업자와 최초로 매매계약을 체결하고 계약금을 납부하였거나, 자기가 건설한 신축주택으로서 사용승인 등을 받은 신축주택을 신법 시행 후 양도하는 경우 신법의 개정규정에 불구하고 구법을 적용하되, 이 경우 매매계약을 체결하고 계약금을 납부한 날 또는 자기가 건설한 신축주택으로서 사용승인 등을 받은 날 당시의 고급주택 기준율 적용하고(위 부칙 제29조 제1항), 또한 자기가 건설한 신축주택으로서 신법 시행 전에 당해 신축주택에 대한 공사에 착수하여 2003. 6. 30. 이전에 사용승인 등을 받은 경우에도 구법을 적용하도록 규정하고 있다(위 부칙 제29조 제2항), 그 중 위 부칙 제29조 제1항은 구법 적용의 요건으로 신법 시행 전에 구법 제99조의3 제1항 제1호 및 제2호의 요건을 갖춘 것을 요구하는 내용으로서, 위 부칙 조항에는 위 구법 규정에서 괄호 안에 병기한 '주택조합 등을 통하여 취득하는 주택으로서 대통령령이 정하는 주택'(제1호) 내지 '주택조합 등을 통하여 대통령령이 정하는 조합원이 취득하는 주택'(제2호)이 병기되지는 아니하였지만, 이들 경우를 '주택건설업자와 최초로 매매계약을 체결하고 계약금을 납부한 경우'(제1호) 또는 '자기가 건설한 신축주택으로서 사용승인 등을 받은 경우'(제2호)와 달리 취급할 아무런 합리적인 이유가 없는 만큼, 위 부칙 제29조 제1항의 요건 중에는 구법 제99조의3 제1항 제1호 및 제2호의 괄호 안에 병기된 내용들도 포함되어 있다고 해석함이 상당하고, 위 부칙 조항 후분에 고급주택 기준의 적용시점으로 규정되어 있는 '매매계약을 체결하고 계약금을 납부한 날'과 자기가 건설한 신축주택으로서 사용승인 등을 받은 날' 역시 구법 제99조의3 제1항 제1호 및 제2호의 경우에 대응하는 의미로 파악하여야 할 것이므로, 구법 제99조의3 제1항 제1호, 구시행령 제99조의3 제3항 제2호 소정의 신축주택의 경우 고급주택 기준의 적용시점이 되는 '매매계약을 체결하고 계약금을 납부한 날'이라 함은 주택조합 등이 신축주택취득기간 내에 조합원분양분을 제외한 잔여주택에 관하여 조합원 외의 자와 매매계약을 체결하고 그 계약금을 납부 받은 날을 의미한다고 할 것이다.

As seen earlier, the instant association concluded a sales contract with persons other than its members and received down payment with respect to the said remaining apartment from April 25, 2002 to April 27, 2002, the new house acquisition period from April 25, 2002. Thus, even if the use approval was made after the new house acquisition period, the former Act provisions shall apply pursuant to the first sentence of Article 29 (1) of the Addenda of the new Act. Meanwhile, the Plaintiff did not claim that high-class houses in apartment houses are subject to reduction of capital gains tax under Article 9 (1) 3 of the former Income Tax Act (amended by Act No. 6781, Dec. 18, 2002), Article 156 subparagraph 2 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 17751, Oct. 1, 202) and Article 156 subparagraph 9 of the former Enforcement Decree of the newly-built house Act (amended by Presidential Decree No. 932, Oct. 1, 9, 2009).

(3) Ultimately, the Plaintiff’s acquisition of a newly-built house subject to reduction or exemption of capital gains tax under Article 99-3(1)1 of the former Act and Article 99(3)2 of the former Enforcement Decree shall be subject to reduction or exemption of capital gains tax following the transfer of the instant apartment. Thus, the instant disposition made on a different premise is unlawful.

3. Conclusion

Therefore, the plaintiff's claim seeking the cancellation of the disposition of this case shall be accepted on the grounds of its reasoning, and it is so decided as per Disposition.

Related Acts and subordinate statutes

○ Article 99-3 of the Restriction of Special Taxation Act (amended by Act No. 6762 of Dec. 11, 2002)

Transfer income tax on the acquisitor of a newly-built house under Article 99-3:

(1) With respect to the income accruing from transfer of a newly-built house (including land attached to a house, the area of which is less than twice the total floor area of the relevant building; hereafter in this Article, the same shall apply) falling under any of the following subparagraphs by a resident (excluding a housing construction business operator) within five years from the date of acquisition, the tax amount equivalent to 100/100 of the transfer income tax shall be reduced or exempted, and where the relevant newly-built house is transferred after the lapse of five years from the date of acquisition thereof, the transfer income accruing for five years from the date of acquisition of the relevant newly-built house shall be subtracted from his income amount subject to the transfer income tax: Provided

1. In cases of newly-built house acquired from a housing developer:

A newly-built house acquired by a person who first concludes a sales contract and pays a down payment with a housing constructor during the period from May 23, 2001 to June 30, 2003 (hereafter in this Article, referred to as the “newly-built house acquisition period”): Provided, That this shall not include a house that has been occupied as of the date of a sales contract under the Housing Construction Promotion Act or a redevelopment association under the Urban Redevelopment Act, as prescribed by the Presidential Decree, or has a fact falling under any of the causes

2. Where a newly-built house (including a house acquired by a housing association under the Housing Construction Promotion Act or a member as prescribed by the Presidential Decree through an redevelopment association under the Urban Redevelopment Act);

A newly-built house that has obtained approval or inspection for use (including approval for temporary use) within the acquisition period of a newly-built house

○ Special Taxation for transfer income tax on a person acquiring newly-built house under Article 99-3 of the Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 17458, Dec. 31, 2002)

(1) Deleted.

(3) The term “houses prescribed by the Presidential Decree” in Article 99-3 (1) 1 of the Act means the houses falling under any of the following subparagraphs:

Where a newly-built house for which an approval for use or inspection for use (including approval for temporary use) has been obtained is transferred after this Act enters into force, the previous provisions shall apply to the calculation of the amount subject to abatement or exemption of transfer income tax and the amount subject to taxation of transfer income tax, notwithstanding the amended provisions of Article 99 (1) or 99-3 (1). In this case, the standard of de-class house as of the date of

(2) Where a newly-built house under Article 99-3 (1) 2 commences its construction work for the relevant newly-built house before this Act enters into force, and has obtained the approval for use or inspection for use (including approval for temporary use) before June 30, 2003, the previous provisions shall, notwithstanding the amended provisions of Article 99-3 (1), be applied.

Article 99-3 of the Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 17829, Dec. 30, 2002) (Special Taxation for Transfer Income Tax on Purchasers of Newly-Built Houses

(1) The term “area prescribed by the Presidential Decree” in the main sentence of Article 99-3 (1) of the Act means the powder, day, square village, mountain village, middle-dong and new urban area designated and publicly notified as a planned area for housing site development under Article 3 of the Housing Site Development Promotion Act.

Article 89 of the Income Tax Act (amended by Act No. 6781 of Dec. 18, 2002) Article 89

No capital gains tax (hereinafter referred to as "capital gains tax") shall be levied on the following incomes:

3. Income accruing from a transfer of one house for one household prescribed by Presidential Decree (excluding high-class houses the total floor area, value, facilities, etc. of which exceed the standards prescribed by Presidential Decree of residential buildings) and the appurtenant land within the area calculated by multiplying the area of land on which a building is built by the ratio prescribed by Presidential Decree by

Article 156 of the Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 17751 of Oct. 1, 2002) Scope of the high-class houses

The term "high-class house, the total floor area, value, facilities, etc. of which exceed the standards prescribed by Presidential Decree" in subparagraph 3 of Article 89 of the Act means a house falling under any of the following subparagraphs and land annexed thereto:

2. An apartment house (including a multi-family house, but excluding the case deemed to be a detached house under Article 155 (15)) whose exclusive area (including the area of an underground room exclusively used for residence) is not less than 165 square meters and whose actual transaction price at the time of transfer exceeds 60 million won; and

Article 156 of the Enforcement Decree of the Income Tax Act (amended by the Presidential Decree No. 17825 of Dec. 30, 2002) Scope of the high-class houses

The term "high-class house, the total floor area, value, facilities, etc. of which exceed the standards prescribed by Presidential Decree" in subparagraph 3 of Article 89 of the Act means a house falling under any of the following subparagraphs and land annexed thereto:

2. An apartment house (including a multi-family house, but excluding the case deemed to be a detached house under Article 155 (15)) whose exclusive area (including the area of an underground room exclusively used for dwelling) is not less than 149 square meters and whose actual transaction price at the time of transfer exceeds 60 million won; and

A Addenda No. 17751, October 1, 2002

Article 1 (Enforcement Date) This Decree shall enter into force on the date of its promulgation.

Article 89 of the Enforcement Decree of the Income Tax Act (amended by Act No. 6781 of Dec. 18, 2002) Article 89

No capital gains tax (hereinafter referred to as "capital gains tax") shall be levied on the following incomes:

3. Income accruing from a transfer of such one house for one household as prescribed by the Presidential Decree (excluding the high-class house whose value exceeds the standard prescribed by the Presidential Decree) and the appurtenant land within the area calculated by multiplying the area of land to which a building is built by the ratio as determined by region

Article 156 of the Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 17825, Dec. 30, 2002) Scope of expensive Houses

(1) The term “high-priced house the value of which exceeds the standard determined by the Presidential Decree” in subparagraph 3 of Article 89 of the Act means that the sum of the actual transaction values at the time of transfer of a house and its appurtenant land (where a part of a house is transferred, it refers to the amount calculated by dividing the sum of the actual transaction values by the ratio occupied by the area transferred from