Cho High Court Decision 2007west 4644 (Law No. 8.14, 2008)

Transfer income tax on real estate for public works in the designated area;

With respect to the special taxation of capital gains tax on real estate for public works within the designated area, the project implementer, the transferee of the real estate, failed to obtain authorization for the implementation of the urban environment rearrangement project, and may report it as the standard market price

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

1. The defendant's refusal to rectify the transfer income tax of KRW 127,946,491 on July 30, 2007 against the plaintiff on July 30, 2007 shall be revoked.

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

The same shall apply to the order.

1. Basic facts

(a) Circumstances of the disposition;

(1) 원고는 1985. 9. 5. 서울 ☆☆구 ★★동 416-1 대 38.1㎡를, 2002. 5. 20. 위 토지상의 건물 131.18㎡(이하 위 토지와 건물을 '이 사건 부동산'이라 한다)를 각 취득 하였는데, 2005. 7. 7. 이 사건 부동산을 소외 주식회사 ○○디엔씨에게 매도하기로 하 는 계약을 체결하였다가 2005. 7. 20.경 소외 주식회사 ●●●●●●●먼트(이하 '소외 회사'라 한다)가 위 매매계약상의 매수인의 지위 및 권리의무를 승계함에 따라 2006. 12. 7. 소외 회사로부터 이 사건 부동산의 잔대금을 모두 지급받고 이 사건 부동산을 양도하였다.

(2) On February 28, 2007, the Plaintiff reported and paid KRW 168,161,558 as capital gains tax calculated on the basis of the actual transaction price of the instant real estate as the instant real estate falls under an speculative area upon the Defendant’s preliminary return and payment of capital gains tax for the year 2006 following the transfer of the instant real estate. On May 30, 2007, the Plaintiff filed a claim for correction with the Defendant on May 30, 2007, for the special taxation of capital gains tax under Article 85 of the former Restriction of Special Taxation Act (amended and deleted by Act No. 8146 of Dec. 30, 2006; hereinafter “Special Taxation Act”) to the effect that the amount of capital gains tax is 40,215,067 won when calculating capital gains tax on the basis of the standard market price under the aforementioned provisions. Accordingly, the difference between the amount originally paid and the relevant tax amount is refunded to the Defendant.

(3) On July 30, 2007, the defendant rendered a disposition rejecting the plaintiff's request for correction on the ground that the transferee company is not designated as a public interest project operator until the time of transfer of real estate in this case.

(b) Designation of the urban environmental rearrangement zone and approval for project implementation;

(1) 이 사건 부동산이 속한 서울 ☆☆구는 2005. 6. 30.자로 주택 외 투기지역으로 지정되었고, 한편 이 사건 부동산이 위치한 ☆☆구 ★★1구역은 2003. 11. 18. 서울특별시 고시 2003-374호로 균형발전촉진지구로 지정되었으며, 2006. 3. 13. 서울특별시 고시 제2006-87호 도시환경정비구역으로 지정, 고시되었다.

(2) 소외 회사는 도시환경정비구역인 ★★1구역 내에서 정비사업을 시행하기 위하여 이 사건 부동산을 취득하는 한편, ★★1구역에 대한 도시환경정비사업 시행계획을 수립하면서 2006. 5. 4. 서울특별시 ☆☆구청장으로부터 도시환경정비사업과 관련한 문 화재보존을 위한 조치사항을 통보받았고, 2006. 6. 16. 서울특별시 교통영향심의위원회 로부터 교통영향평가서에 관한 조건부가결 결정을 받았으며, 2006. 6. 29. 서울특별시 서부교육청으로부터 학교환경위생정화구역 내 금지행위 및 시설해제결과를 통보받았고, 2006. 6. 30.에는 ☆☆구청장으로부터 서울특별시 건축위원회의 심의결과를 통보받았다.

(3) 그 후 소외 회사는 이 사건 부동산에 대한 잔금청산일 이후인 2006. 12. 22. ☆☆구청장에게 ★★l구역 도시환경정비구역 사업시행인가신청을 하였고, 이에 ☆☆구 청장은 2007. 5. 25. 소외 회사를 사업시행자로 하는 도시환경정비구역 사업시행인가 통지 및 고시를 하였다.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 7, Eul evidence Nos. 1 and 2, the purport of the whole pleadings

2. Claims and points of the parties concerned;

As the Plaintiff acquired the instant real estate before the designation of a rearrangement zone, which is the time of acquisition as prescribed by the special taxation provision of this case, and transferred it to the transferee, who is an urban environment rearrangement project implementer, on December 7, 2006, within the time of transfer, the Plaintiff asserts that the instant special taxation provision should apply in calculating the transfer income tax following the transfer of the instant real estate, and that the disposition of this case, which refused the Plaintiff’s request for correction, is unlawful.

The defendant asserts that the special taxation provision of this case does not apply because the non-party company, the transferee of the real estate, was not authorized to implement the urban exchange rearrangement project until the time of transfer of the real estate in this case, and is not a business implementer.

Therefore, the issues of this case are whether the special taxation provisions of this case can be applied by deeming the project implementer in an unauthorized state as the project implementer stipulated in the special taxation provisions of this case in the case where the project implementation implementation is performed after transferring the real estate to the project implementer who implements the project without obtaining authorization for the project implementation

3. Related Acts and subordinate statutes.

It shall be as shown in the attached Form.

4. Determination

(a) Contents of the Income Tax and Restriction of Special Taxation Act on the method of calculating transfer value;

Article 96 (1) of the former Income Tax Act (amended by Act No. 7837, Dec. 31, 2005; Act No. 96 (1) of the Income Tax Act (amended by Act No. 7837, Jan. 1, 2006); however, Article 96 (2) of the same Act (amended by Act No. 96 (2) provides that the transfer value of the relevant assets shall be based on the "standard market price as at the time of the transfer of the relevant assets"; however, Article 85 of the Restriction of Special Taxation Act (the provision of this case) provides that the transfer value of the relevant real estate shall be based on the "standard market price as at the time of the transfer of the relevant assets"; Article 96 (1) of the same Act provides that the transfer value of the relevant real estate to a person who is similar to the "land designated by Act No. 5 of the Housing Site Development Promotion Act" to the "land designated by Act No. 1 or 4 of the same Act before the date of the transfer of the relevant real estate within the designated area. 1.

B. Purport of the special provisions on taxation of the instant case

In full view of the title and contents of the special taxation provisions of this case, each of the special taxation provisions of this case, and each of the subparagraphs of attached Table 7 of Article 79-2(1) of the former Enforcement Decree of the Restriction of Special Taxation Act, all of the projects planned by the law stipulated in the special taxation provisions of this case and each of the subparagraphs of attached Table 7 of the former Enforcement Decree of the Restriction of Special Taxation Act are public interest purposes, and the above law recognizes the right to expropriate the project operator based on the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects, and the right to make decisions on the transfer value even if the transferor transfers the real estate to the project operator through consultation, the purpose of the special taxation provisions of this case is to relieve the taxpayer's tax burden by allowing the transfer value to be based on the standard market price rather than the actual transaction value if the real estate in the speculative designated area is transferred or expropriated for public interest purpose (see Supreme Court Decision 2006Du16779, Dec. 27, 2007).

C. Scope of the project implementer under the special provisions on the special taxation of the case

(1) According to the special taxation provisions of this case and Article 79-2 (1) 9 of the former Enforcement Decree of the Restriction of Special Taxation Act, when the land acquired before the designation date of the improvement zone is transferred to the project executor before December 31, 2006, the transfer value can be calculated based on the standard market price. However, Article 2 (8) of the Restriction of Special Taxation Act, etc. does not have any separate definition provision concerning the project executor, while Article 2 (8) of the Do and the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter referred to as the "Do Government Act") provides that the project executor refers to the person who implements the improvement project, and it does not have any explicit provision that only the project executor who has obtained the authorization for the implementation of the project in this case is deemed to mean the project executor who has obtained the authorization for the implementation of the project in this case, or is also deemed to include the project executor who has obtained the authorization for the implementation of the project in the improvement zone.

(2) Under the principle of no taxation without law, a tax law interpretation shall be interpreted in accordance with the text of the law unless there are special circumstances, and it shall not be extensively interpreted or analogically interpreted without reasonable grounds. However, where it is necessary to clarify the meaning through mutual interpretation between the laws and regulations, a joint-purpose interpretation may be made in light of the legislative intent and purpose to the extent that it does not undermine the legal stability and predictability pursued by the principle of no taxation without law (see Supreme Court Decision 2007Du13784, Feb. 14, 2008).

(3) However, in light of the legislative intent of the Act on the Regulation of Special Taxation and the Enforcement Decree of the Housing Act, the project implementer is merely a person who implements a rearrangement project under the Act on the Regulation of Special Taxation and does not stipulate that the project implementer shall obtain authorization for the implementation of the project as a requirement for the recognition of the project implementer. ② In light of the legislative intent of the Act on the Regulation of Special Taxation and the Ordinance on the Regulation of Special Taxation and the Regulation of Special Taxation, if the project implementer is designated as an urban environment rearrangement zone and actually implemented the project after cooperation with the project owner before the project implementation authorization, the provisions of the Act on the Regulation of Special Taxation and the Ordinance on the Regulation of Special Taxation provide that the project implementer shall be deemed to have no more unfavorable reasons than the transferor of the land. ③ Where Article 28 of the Act on the Regulation of Special Taxation and the Ordinance on the Regulation of Special Taxation are to be implemented by the project implementer before the project implementer obtains the authorization for the implementation of the rearrangement project, the provisions of the Act stipulate that the project implementer may be implemented by the implementer or the head of the land, etc.

D. Sub-determination

Therefore, the special taxation provision of this case shall apply to the calculation of capital gains in relation to the transfer of the real estate of this case. Thus, the disposition of this case which rejected the plaintiff's request for correction on different premise is unlawful.

5. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is so decided as per Disposition by admitting it.