Whether the transfer of a house subscription deposit certificate constitutes a transfer of the 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 (affirmative)

The house subscription deposit certificate under Article 32 of the Housing Construction Promotion Act and Article 13 of the Rules on Housing Supply is a requirement to secure the priority order in the selection of occupants of a house, and in fact, the above house subscription deposit certificate is traded and sold with a premium in its face value. Thus, the transfer of the above house subscription certificate can ultimately be seen as the transfer of the right to acquire the house by the transferee as a result of the winning in the house sale in the name of deposit holders. Thus, this constitutes the transfer of the right to acquire the 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.

Article 23 (1) 2 of the Income Tax Act, Article 44 (4) 2 of the Enforcement Decree of the same Act, Article 13 of the Rules on Housing Supply, Article 32 of the Housing Construction Promotion Act

Supreme Court Decision 85Nu424 Decided September 24, 1985

[Defendant-Appellee] Plaintiff 1 et al.

Head of the tax office;

Seoul High Court Decision 83Gu970 delivered on February 25, 1985

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

The grounds of appeal Nos. 1 and 2 of the Plaintiff’s Attorney are also examined.

1. According to the reasoning of the judgment below, the court below found that the plaintiff sold 2,100,000,000 won of deposit subscription certificate to the non-party in its own name at KRW 4,100,000,000. The court below determined that the above deposit amount of KRW 2,100,000 and KRW 4,100,000,000, which are the difference between the deposit amount of KRW 2,10,000 and the certificate transfer value of KRW 4,10,00,00 constitutes transfer marginal profit from the transfer of the right to acquire real estate under Article 23 (1) 2 of the Income Tax Act and Article 44 (4) 2

In light of the records, there is no error of law that misleads the facts against the rules of evidence as alleged in the above finding of facts by the court below, and there is no reason to argue that there is no error of law against the rules of evidence.

2. According to the records, it is evident that the above house subscription deposit certificate subject to the transfer refers to the house subscription deposit certificate as stipulated in Article 32 of the Housing Construction Promotion Act and Article 13 of the Rules on Housing Supply. According to Article 13 of the above Rules, the house subscription deposit certificate is one requirement to secure the priority order in the selection of occupants of the house, and in fact, the above house subscription deposit certificate is traded and sold with a premium in the face value. Thus, the transfer of the above house subscription certificate can ultimately be seen as the transfer of the right by the transferee to acquire the house by winning the house in the name of the deposit owner. Thus, it constitutes the transfer of the right to acquire the real estate under Article 23 (1) 2 of the Income Tax Act (see Supreme Court Decision 85Nu424 delivered on September 24, 1985).

The judgment of the court below to the same purport is just, and there is no error of law such as misunderstanding of legal principles as the theory of lawsuit.

3. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Il-young (Presiding Justice)