In a case where a partner of redevelopment association provides a redevelopment association with a house and its appurtenant land to the redevelopment project and transfers the status of a partner who can purchase a long-term apartment building along with the remaining appurtenant land after the removal of the house as part of the redevelopment project before the approval plan for the management and disposal plan, whether the transfer is subject to non-taxation of capital gains tax as the transfer of one house for one household, if the partner satisfies the requirements for holding period under Article 15(1)2 of the former Enforcement Decree

Article 5 subparagraph 6 (i) of the former Income Tax Act (wholly amended by Act No. 4803 of Dec. 2, 1994) and Article 15 (1) of the former Enforcement Decree of the Income Tax Act (wholly amended by Presidential Decree No. 1467 of Dec. 31, 1994) provide that no income tax shall be imposed on the income accruing from the transfer of one house for one household. Thus, since one household's ownership in Korea becomes the basis for citizen's residential life, it is intended to transfer one house to the same household for the purpose of acquiring capital gains tax or to temporarily reside or own the house for the purpose of speculation and to guarantee the freedom of residential stability and relocation of the house. Since Article 15 (1) of the former Enforcement Decree of the Income Tax Act (wholly amended by Act No. 4803 of Dec. 2, 1995) provides that the ownership of the house or the house redevelopment facility at the time of sale in lots shall be determined by the articles of association of the housing redevelopment association and the remaining land owned by the redevelopment facility under the former Act.

Article 5 subparagraph 6 (i) (see current Article 89 subparagraph 3) of the former Income Tax Act (amended by Act No. 4803 of Dec. 22, 1994), Article 15 (1) (see current Article 154 (1)) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 14467 of Dec. 31, 1994), Article 49 (see current Article 39) of the Urban Redevelopment Act (amended by Act No. 5116 of Dec. 29, 195)

Supreme Court Decision 91Nu10305 Decided January 15, 1993 (Gong1993Sang, 745) Supreme Court Decision 93Nu17324 Decided March 8, 1994 (Gong1994Sang, 1214) Supreme Court Decision 97Nu17094 Decided March 27, 1998 (Gong198Sang, 1225), Supreme Court Decision 98Du12796 Decided November 27, 1998; Supreme Court Decision 97Nu4975 Decided July 27, 199 (Gong199Ha, 1812)

Plaintiff

Head of Seodaemun Tax Office

Seoul High Court Decision 97Gu11289 delivered on December 24, 1997

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. According to the reasoning of the judgment below, the court below, comprehensively based on the evidence adopted in its judgment, acquired the land of this case and the housing of this case, which is an unauthorized building on or around September 30, 198, and then designated and publicly notified as the redevelopment area for housing improvement redevelopment project under the Urban Redevelopment Act, the land of this case and the housing of this case were provided to the redevelopment cooperative, which is the developer of the redevelopment project. The above redevelopment cooperative removed the housing of this case as part of the implementation of the redevelopment project around July 22, 1991, and issued a certificate of rights to prove that the plaintiff is the right to purchase the apartment house as a member of the redevelopment cooperative, and the plaintiff transferred the land of this case and the right to purchase the above land of this case to the non-party on or around February 10, 1995, changed the name of the non-party member on April 14, 195, and thereafter acquired the right to purchase the land of this case to the non-party under the management disposal plan.

2. However, since Article 5 subparag. 6 (i) of the former Enforcement Decree of the Income Tax Act (amended by Act No. 4803, Dec. 22, 1994; hereinafter referred to as the “Act”) and Article 15(1) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 1467, Dec. 31, 1994; hereinafter referred to as the “Enforcement Decree”) stipulate that the income tax shall not be imposed on the income accrued from the transfer of one house to one generation under Article 97 subparag. 6 (i) of the Act on the Ownership of Housing and Article 15(1) of the Housing Redevelopment Act (amended by Act No. 1975, Dec. 1, 1996; hereinafter referred to as the “Act”) as the basis for the residential life of the people, the ownership of one house owned by one household is to be transferred to the redevelopment facility for the purpose of acquiring the ownership of the building site or to transfer the ownership of the building site.

Examining the reasoning of the judgment below in light of the aforementioned legal principles and records, the court below is just in holding that the above transfer income constitutes non-taxation as transfer of one house for one household and its appurtenant land, since the plaintiff acquired the land of this case and provided it to the redevelopment association on or around July 22, 1991, and transferred the status of union members entitled to purchase construction facilities along with the land of this case before the approval of the management and disposal plan on or around February 10, 1995, and more than five years have passed since it did not own another house at the time of transfer, and there was no error in the misapprehension of legal principles as to one house for one household and its appurtenant land, and there is no violation of the rules of evidence and any illegality in incomplete deliberation. The grounds of appeal are all not acceptable.

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

Justices Lee Yong-woo (Presiding Justice)