Early High Court Decision 2008Du1560 ( October 31, 2008)

is deemed to be a house that is not registered before the date of authorization for management and disposition.

In the case of reconstruction houses, etc., the house shall be converted to the occupancy right as of the date of the approval of the management and disposal plan, and the destroyed house shall be regarded as a house unless the destroyed house is registered in the closed price.

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

1. The plaintiff's claim is dismissed.

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

The defendant's disposition of imposition of capital gains tax of KRW 142,825,910 (including additional tax) belonging to the year 2006 against the plaintiff on February 1, 2008 (hereinafter referred to as "instant disposition of imposition") shall be revoked.

1. Circumstances of the disposition;

가. 원고는 1996. 2. 28.경 취득한 안양시 ☆☆구 ★★동 1103 은하수 ○○아파트 201동 901호(이하 '이 사건 주택'이라 한다)를 2006. 4. 29. 윤●●에게 양도(이하 '이 사건 양도'라 한다)하고, 같은 해 5. 4. 피고에게 이 사건 양도는 1세대 1주택의 양도로서 양도소득세 비과세에 해당한다는 이유로 양도소득세 비과세신고를 하였다.

나. 그러나 피고는, 이 사건 양도 당시, 원고가 이 사건 주택 이외에 서울 ◎◎구 ����동 499 ����주공1단지 제108동 제304호를, 원고의 부인으로서 원고와 같은 세대인 이기자가 같은 단지 제120동 제407호(����주공1단지 아파트 2채를 통칭하여 이하 '이 사건 재건축 주택'이라 한다)를 각 소유하고 있었다는 이유로 이 사건 양도를 1세대 3 주택 소유자의 양도로 보아 이 사건 부과처분을 하였다.

C. On April 29, 2008, the Plaintiff appealed to the Tax Tribunal for the instant disposition, but the Tax Tribunal dismissed the Plaintiff’s request on October 31 of the same year.

[Reasons for Recognition] In the absence of dispute, Gap evidence 2, 5 Gap evidence 6-1, 2, 3, Gap evidence 7, 9, Eul evidence 1, and the purport of the whole pleadings

2. Whether the dispositions of the instant case are legal.

A. The plaintiff's principal

(1) On or before April 29, 2006, the date of the instant transfer, the reconstruction of the instant housing had been completely suspended for the purpose of reconstruction, and since the interior of the building was completely removed and closed for a considerable period of time, the instant reconstruction housing does not fall under the housing under the Income Tax Act. Moreover, since the approval of the instant reconstruction management and disposal plan was after the instant transfer, it cannot be deemed as the “right to move into the housing of the association members” under Article 89(2) of the Income Tax Act (hereinafter “Act”).

(2) Therefore, the instant disposition that assumes that the instant reconstruction house is a house or a partner's right to move into the housing site is unlawful.

(b) Related Acts and subordinate statutes: To be stated in attached Form;

(c) Fact of recognition;

(1) The Plaintiff and the Lee In-bok owned the instant reconstruction house prior to the instant transfer.

(2) 서울 ◎◎구청장은 2003. 4. 7. 이 사건 재건축 주택이 포함된 서울 ◎◎구 ����동 소재 ����주공1단지 아파트들(이하 '이 사건 아파트 단지'라 한다)에 대하여 정밀 안전진단을 실시한 결과 재건축이 타당하다는 판정을 하였고, 이 사건 아파트 단지의 구분소유자 중 대다수가 재건축사업에 찬성하여 ����주공1단지 아파트재건축정비사업조합이 설립되었다.

(3) On June 2, 2003, the reconstruction improvement project implementer promoted the reconstruction project with the approval of the establishment of the association, and around December 20, 2004, the removal of occupants was completed, and around that time, all of the facilities, such as urban gas supply and electricity, attached to the apartment complex of this case, including the reconstruction housing of this case, were removed, and around the apartment complex of this case, the entrance of the general public was controlled by installing a blocking system for preparation of removal works, and after the transfer of this case, the management and disposal plan was approved by the head of Seoul Metropolitan Government Madle on June 30, 206.

(4) Since then, the apartment complex of this case, including the instant reconstruction housing, was entirely removed on January 10, 2007.

[Ground of recognition] Facts without dispute, Gap evidence 7, 8, Gap evidence 11-1, 2, Gap evidence 12, Gap evidence 16 (including provisional number), the purport of the whole pleadings

D. Determination

(1) The purport of not imposing income tax on the income accruing from the transfer of one house for one household is to guarantee the freedom of the people’s residential stability and the transfer of residence by failing to impose income tax on the transfer income in certain cases where it can be deemed that the transfer of one house owned in Korea is not a temporary dwelling or ownership for the purpose of acquiring capital gains or speculation (see Supreme Court Decision 94Nu125, Sept. 13, 1994). If it does not fall under such a case, even if the building was removed prior to removal due to reconstruction under the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, it constitutes “house” under Article 89(1)3 of the Income Tax Act (see Supreme Court Decision 2008Du1310, Nov. 26, 2009).

(2) As to the instant case, as seen earlier, the management and disposition plan regarding the reconstruction of the instant apartment complex that ought to be established after the instant transfer was approved, it cannot be viewed as the “right to occupy the instant reconstruction house” under Article 89(2) of the Act.

However, the reconstruction house of this case is reconstructed as a residential apartment according to the reconstruction project, unless there are special circumstances, and it seems that it still has the potential function as a residential house at the time of the transfer of this case (in practice, the plaintiff and the e-mail's present residence are 108 Domp 1104 and 1104 Domp 104, which was newly constructed at the location of the reconstruction house of this case). Under Article 89 (2) of the Act, it is reasonable to view that the reconstruction house of this case falls under the "house of Article 89 (1) 3 of the Act at the time of the transfer of this case" in full view of the legislative purport of Article 89 (2) of the Act and the purport of the non-taxation system of the transfer income tax exemption system of one house for one household (the plaintiff and the e-government owned three bonds including the reconstruction house of this case at the time of the transfer of this case).

(3) Therefore, the imposition disposition of this case is lawful.

3. Conclusion

If so, the plaintiff's claim is without merit, and it is dismissed. It is so decided as per Disposition.