Whether the person acquiring newly-built house is subject to reduction or exemption of capital gains tax;

Since a sales contract was made at the time of the payment of the intermediate payment and the remainder was paid in the name of the purchaser, it constitutes a transfer of a sales right and the transfer of a sales right constitutes a transfer of a newly-built house.

Article 162 of the Enforcement Decree of the Income Tax Act: Time of Transfer or Acquisition

Transfer income tax reduction or exemption for purchasers of Newly-built houses under Article 99 of the Restriction of Special Taxation Act

1. The plaintiff's appeal is dismissed.

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

Purport of claim and appeal

The judgment of the first instance shall be revoked. The defendant shall revoke the disposition of imposition of capital gains tax of KRW 20,920,000 for the plaintiff on October 8, 2003.

1. Details of the disposition;

A. The Seoul ○○○○○○○-dong 000 ○○○○○ apartment 000 000 0000 - 000 - hereinafter “the instant house”) began on May 28, 199 and obtained approval for use on June 7, 2003 by the Housing Redevelopment Cooperatives in the Zone 0 ○○-dong 00 - and completed registration for ownership preservation on March 20, 204.

B. On December 22, 199, the Plaintiff entered into a sales contract with Kim○ on March 12, 2003 with the purchase price of KRW 250,000,000, after selling the instant house in general at KRW 131,000,000, excluding the remainder of KRW 26,200,000, and paying the down payment and the intermediate payment. On June 5, 2003, the Plaintiff received the remainder from Kim○○ and paid the remainder under the name of Kim○○ on the same day.

C. On June 24, 2003, the Plaintiff paid only special rural development tax except capital gains tax pursuant to Article 99 of the Restriction of Special Taxation Act on the reduction or exemption of capital gains tax on the acquisitor of newly-built house, upon filing a preliminary return on the said transfer to the Defendant.

D. Accordingly, on October 8, 2003, the Defendant rendered a disposition imposing capital gains tax of KRW 20,920,000 on the Plaintiff in 203 on the ground that the Plaintiff’s transferred assets are not subject to capital gains tax reduction or exemption on the grounds that the assets do not fall under the sales right that can acquire houses other than housing (hereinafter “instant disposition”).

(Evidence) Evidence Nos. 1, 7, Evidence Nos. 8-1, 5, Evidence No. 9-11, Evidence Nos. 1 and 2, and the purport of the whole pleadings.

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The Plaintiff asserts that the instant house was completed and usable on May 31, 2003, before obtaining approval for use, and therefore, as of June 5, 2003, when viewed as of June 5, 2003, when the Plaintiff received the remaining purchase money from Kim○○, the assets transferred by the Plaintiff is not a sale right but a newly-built house, and thus, the instant disposition on the ground that it falls under the reduction and exemption of capital gains tax as stipulated in Article 99 of the Restriction of Special Taxation Act and is unlawful

(b) Related statutes;

The entries in the attached Table-related statutes are as follows.

C. Facts of recognition

(1) On December 22, 199, the Plaintiff, while selling the instant house and paying the down payment and intermediate payment, entered into a sales contract with Kim○○ on March 12, 2003 with respect to the instant house as KRW 250,000,000, and was paid the down payment amount of KRW 25,000 on the date of the contract, and the intermediate payment of KRW 45,000,000 on April 15, 2003, and the remainder of KRW 180,000 on June 5, 2003, respectively.

(2) The Plaintiff received any balance from Kim○ on June 5, 2003, and changed the purchaser’s name in the above sales contract to Kim○○, and paid any balance in the name of Kim○○. On March 20, 2004, the registration of ownership preservation in the name of the above association was completed on March 20, 2004, and the registration of ownership transfer was completed on December 22, 199.

(Evidence 7 Evidence 7, Evidence 8-1 through 5, and Evidence 10, respectively, and the purport of the whole pleadings.

D. Determination

According to the relevant laws and regulations, when a person who purchased a house remaining after supplying a house to a member of a housing association, etc. from May 22, 1985 to December 31, 199 transfers the house within five years from the date of its acquisition, tax amount equivalent to 100/100 of capital gains tax shall be reduced. It is examined whether the Plaintiff acquired a newly-built house at June 5, 2003 and transferred it to the Plaintiff as of June 5, 2003. As seen above, the Plaintiff’s disposal of the newly-built house at the time of the sale was changed to the purchaser under the sales contract after the Plaintiff paid the intermediate payment under the name of the purchaser and completed the transfer registration in the name of the purchaser. Thus, the Plaintiff’s transfer of the newly-built house at issue is not a newly-built house, but a right to sell the house at issue, and the Plaintiff’s transfer of the house at the time of sale after paying the purchase price for the newly-built house at ○○○ by acquiring the right to purchase.

3. Conclusion

Therefore, the plaintiff's claim seeking the cancellation of the disposition of this case is dismissed as it is without merit, and the judgment of the court of first instance is just in its conclusion, and the plaintiff's appeal is dismissed and it is so decided as per Disposition.

public official law, order of law,

Restriction of Special Taxation

Article 99 (Abatement or Exemption of Transfer Income Tax for Purchasers of Newly-Built Houses)

(1) With respect to the income accruing from the transfer of a newly-built house (including land less than twice the total floor area of the relevant building attached thereto; hereafter the same shall apply in this Article) falling under any of the following subparagraphs by a resident (excluding a housing construction business operator) within five years from the date of its acquisition, the tax amount equivalent to 100/100 of the capital gains tax shall be reduced or exempted, and where the relevant newly-built house is transferred after five years have elapsed from the date of its acquisition, the capital gains accruing for five years from the special date of its acquisition shall be subtracted from the income amount subject to the capital gains tax: Provided, That this shall not apply where the newly-built house falls under the expensive house excluded from the

1. A house which is constructed by himself (including any house acquired by a housing association under the Housing Act or a cooperative for maintenance and improvement projects under the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents) and for which the approval for use or inspection for use (including approval for temporary use) has been obtained between December 31, 199; and

2. A house acquired from a housing developer by a person who first concludes a sales contract and pays a down payment within the newly-built house acquisition period (including a house prescribed by the Presidential Decree that is acquired through a housing association under the Housing Act or a maintenance and improvement project association under the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents): Provided, That a house that has been occupied by another person as of the

Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 18044 of Jun. 30, 2003)

Article 99 (Abatement or Exemption of Transfer Income Tax for Purchasers of Newly-Built Houses)

(3) The term "housing prescribed by Presidential Decree" in Article 99 (1) 2 of the Act means the housing falling under any of the following subparagraphs:

1. The end of a house acquired by a person who concludes a sales contract directly with a housing association, etc. and pays the down payment within the new house acquisition period under Article 99 (1) 1 of the Act (hereafter in this Article, referred to as the “new house acquisition period”) that remains after a housing association under the Housing Construction Promotion Act or an redevelopment cooperative under the Urban Redevelopment Act (hereafter in this Article, referred to as the “housing association, etc.”) supplies to its members; and