Seoul Administrative Court 2010Gudan8136 ( October 19, 2011)

early 2009west4046 ( October 16, 2010)

Land owners at the time of transfer are subject to special taxation only when project implementation authorization is granted.

With respect to an urban environment rearrangement project implemented by the owners of land, etc., special taxation provisions may apply only where real estate has been transferred to the owners of land, etc. who have received authorization for project implementation, and where no authorization for project implementation has been obtained at the time

2011Nu15000 Revocation of disposition rejecting capital gains tax rectification

leAA

Head of the tax office;

Seoul Administrative Court Decision 2010Gudan8136 decided April 19, 2011

August 31, 2011

October 26, 2011

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance shall be revoked. The defendant's revocation of the capital gains tax correction refusal disposition against the plaintiff on August 18, 2009.

1. cite the judgment of the first instance;

The reasons why this Court is to be used for this case shall be cited in accordance with Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act, except for the following reasons:

:

Article 28(1) provides that, where a project implementer intends to implement a rearrangement project, the project implementation plan, etc. shall be submitted to the head of the Si/Gun and the project implementation authorization shall be obtained, and Article 38 provides that the project implementer may expropriate or use land, goods, or other rights if necessary to implement the rearrangement project. Article 85 Subparag. 7 of the Urban Improvement Act provides that any person who implements the rearrangement project without authorization for project implementation shall be punished by imprisonment with labor for not more than two years or by a fine not exceeding 20 million won. Considering the same as the language and text of the above provision, Article 85 Subparag. 7 of the Urban Improvement Act provides that a person who implements the rearrangement project without authorization for project implementation shall be punished by imprisonment with labor for not more than 2 years or by a fine not exceeding 20 million won. Considering the same as the language and text of the aforementioned provision, this provision may apply only where the owner of the land, etc. transfers real estate to the owner of the land, etc. for which authorization for the implementation of the project is granted. If no authorization for project implementation has been granted later (see, Supreme Court Decision 200

① The legislative intent of the special taxation provisions of this case is to recognize the right to expropriate real estate to a project implementer under the Urban Improvement Act, and even if the transferor transfers real estate to the project implementer, the decision-making authority on the transfer value is limited. Therefore, the transfer income tax burden is mitigated by allowing the transfer value and the acquisition value to be based on the standard market price,

(2) In principle, it is impossible to implement a rearrangement project without obtaining an authorization for project implementation under Article 28 of the Urban Improvement Act.

(3) Where a landowner intends to become a project implementer, the project implementer is specifically determined only when a project implementer is granted authorization to implement the project, including land, in accordance with Article 8 (4) of the Urban Improvement Act, unless there are special circumstances, such as being designated as a project implementer. It is difficult to specify a project implementer before the authorization to implement the project is granted, and it is difficult to deem that the authorization to expropriate the project implementer is granted.

(4) Even where real estate is transferred to an owner, such as land before obtaining authorization for project implementation, if the provisions of the special taxation are applied, the requirements for reduction and exemption as stipulated in the provisions of the special taxation are unclear as the base point for

⑤ The Act on the Improvement of Urban Areas and Dwelling Conditions provides that a project implementer becomes a project implementer with authorization for establishment or is designated by the head of a Si/Gun. If such project implementer continues to implement a project, the legislative purpose of Article 28 of the Act is to stipulate that the project implementer shall obtain authorization for the implementation of a project. As such, Article 28 of the Act on the Improvement of Urban Areas and Dwelling Conditions for Residents is merely interpreted as the procedure for filing an application for authorization for the implementation of a project, including the above cases in light of the context before and after the project, and it is difficult to view

(3) At the time of the transfer of the instant real estate, the non-party company was unable to obtain authorization to implement the project, and was not designated as a project implementer in advance. The non-party company cannot be deemed a project implementer stipulated in

(4) The instant disposition is lawful.

2. Conclusion

The appeal is dismissed.