Seocho 208west 2566 ( November 27, 2008)

When acquiring a right to move from a member after approval of a project plan;

Even if the previous apartment is used for a residential purpose without removing it, if the approval of the housing construction project plan is obtained, it is reasonable to view the time of acquisition as the date of approval for use after reconstruction rather than the time of acquisition of the previous real estate.

The contents of the decision shall be the same as attached.

1. All of the plaintiffs' claims are dismissed.

2. The costs of lawsuit are assessed against the plaintiffs.

On April 15, 2008, the defendant revoked each transfer income tax rejection disposition against the plaintiffs.

1. Details of the disposition;

A. On June 30, 200, the plaintiffs acquired the right to move into the association members of the Gangseo-gu Seoul Metropolitan Government Do○○○○-dong 869-13 Dong 2 and 805 (hereinafter referred to as the "former apartment" of this case) on September 16, 2003, jointly from Non-party Cho Jong-dong, 660,000, and then was selected as the residents of the Gangseo-gu Seoul Metropolitan Government Do○-dong 543-7 Do 105 Do 1702 (hereinafter referred to as the "new apartment of this case"), which will be constructed in the future.

B. After that, the new apartment of this case had been reconstructed and approved for use on June 8, 2007, and the plaintiffs transferred the said new apartment at KRW 1,710,00,000 to the maximum ○○○, September 10, 2007, and on November 30, 2007, the defendant acquired the new apartment of this case on June 8, 2007 and transferred it within one year based on the actual transaction price, and paid KRW 169,353,640, each of the transfer income tax calculated based on the actual transaction price, by deeming that the new apartment of this case was transferred within one year after acquiring it on June 8, 2007, the approval date for use.

C. After that, on February 19, 2008, the plaintiffs should be deemed as on September 16, 2003, the acquisition date of the new apartment of this case, not on the date of approval for use, and on September 16, 2003, which is the acquisition date of the previous apartment of this case. Thus, the transfer income tax to be paid in relation to the transfer of the above new apartment is as KRW 9,130,160, respectively, calculated by applying the tax rate of 36% after making a special long-term holding deduction based on the transfer margin calculated based on the actual transaction price for not less than three years but less than five years. Accordingly, the plaintiffs filed an application for reduction or correction to the effect that the transfer income tax calculated based on the above amount of 169,353,640, which was calculated by applying the tax

D. On April 15, 2008, the defendant applied Article 162 (2) of the Enforcement Decree of the Income Tax Act to the plaintiff on the date of approval for use, since the defendant succeeded to the right to move into a cooperative and transferred the right after completion of reconstruction, the plaintiff's request for correction was rejected on the ground that the date of approval for use is the time of acquisition of the apartment. The plaintiff filed a trial with the Tax Tribunal on July 8, 2008 seeking the cancellation of the disposition of this case, but the plaintiff was also dismissed on November 27, 2008.

[Reasons for Recognition] Unsatisfy, Evidence 1 to 16 (including paper numbers), Evidence 1-1 to 3 of Nos. 1-3, the whole purport of pleading

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

In accordance with the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, the time when the reconstruction apartment owned by the association members is converted into the right to move into the association members is the time of the administrative disposition plan. Thus, if the ownership of the previous apartment house of this case is acquired after the approval of the plan for the plan for the management and disposal as shown in the plaintiff, it is reasonable to view the time of acquisition as the time of acquisition of the previous apartment of this case, not the right to move into the association members if the ownership of the previous apartment of this case is acquired after the approval of the plan for the plan for the management and disposal. Therefore, the time of acquiring the new apartment of this case is not the date of approval for use, but the time of acquisition of the new apartment of this case should be the date of acquisition of the previous apartment of this case as of September 16, 2003, which is the date of acquisition of the previous apartment of this case. Therefore, the transfer income tax to be paid in relation to the transfer of the above new apartment of this case shall be reduced to 9,130,160 won, and 230 won shall be refunded to each plaintiffs.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(1) Therefore, first of all, as to whether the plaintiffs acquired the above apartment as real estate or acquired the conversion of the right to move into the association members due to the rebuilding project plan, the reconstruction association under the former Housing Construction Promotion Act (wholly amended by Act No. 6916 of May 29, 2003; hereinafter the same shall apply), members of the reconstruction association under Article 94 (1) 2 (a) of the former Housing Construction Promotion Act (wholly amended by Act No. 6916 of May 29, 2003; hereinafter the same shall apply) have the right to purchase the housing and its incidental and welfare facilities (hereinafter referred to as the "housing, etc.") newly constructed in accordance with the project plan, until acquiring the ownership of the housing, etc., the right to acquire the apartment house as provided in Article 94 (1) 2 (a) of the former Income Tax Act (amended by Act No. 8825 of Dec. 31, 2007; hereinafter the same shall apply) constitutes the right to acquire the apartment house as provided in the previous housing construction plan.

(2) Furthermore, according to Article 162 (2) of the former Enforcement Decree of the Income Tax Act, where the new apartment of this case transferred by the plaintiffs after reconstruction is transferred or acquired with an asset which is not completed or finalized, and where the object is not completed or finalized by the date of liquidation of the price of the asset concerned, the date of completion or finalized shall be deemed to be the date of such transfer or acquisition. Thus, as in this case, where the plaintiffs succeeded to the right to move in from the members after the approval of the housing reconstruction project plan, as in this case, if they acquire the right to move in from the members after the approval of the housing reconstruction project plan, it appears that the acquisition of the right to acquire real estate constitutes transfer or acquisition of the asset

(3) Accordingly, the defendant's disposition of objection against the plaintiff's request for correction of transfer income tax in the same prior system is reasonable.

3. Conclusion

Therefore, the plaintiffs' claims of this case are all without merit, and they are dismissed. It is so decided as per Disposition.