The meaning of "project operator" in the special taxation of transfer tax on real estate for public works in a designated area;

The special taxation on transfer tax on real estate for public works within the designated area is applied to the case of transferring the land to the project implementer who implemented the project before the authorization for project implementation within the rearrangement zone and has actually been granted the project

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

Article 96 (Transfer Price)

Article 97 (Calculation of Necessary Expenses for Transfer Income Tax)

1. The defendant's disposition rejecting a request for correction of transfer income tax belonging to the year 2006 against the plaintiff on July 31, 2007 shall be revoked.

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

The same shall apply to the order.

1.Basics

(a) Circumstances of the disposition;

(1) On October 25, 2002, the Plaintiff acquired 418-30, 170.9 square meters in Mapo-gu, Seoul, Seoul, and 214.95 square meters in its ground building (hereinafter referred to as “the instant real estate by combining land and buildings”), but around May 4, 2005, decided to sell the instant real estate to Nonparty Co., Ltd. ********* Entertainment (hereinafter referred to as “the non-party company,”) and transferred the instant real estate by receiving full payment from the non-party company on December 7, 2006.

(2) On February 28, 2007, the Plaintiff reported and paid 320,948,832 won (tax base amount 1,023,082,814 won) as capital gains tax calculated on the basis of the actual transaction price of the real estate in this case as the real estate in this case falls under an speculative area, while on May 30, 207, the Plaintiff filed a claim for correction with the Defendant on May 30, 2007 under Article 85 of the former Restriction of Special Taxation Act (amended by Act No. 8146 of Dec. 30, 2006; hereinafter referred to as the "Special Taxation Act") (hereinafter referred to as the "Special Taxation Act"), which is subject to the application of the special taxation for capital gains tax under the above provision, if the amount of capital gains tax is calculated on the basis of the standard market price under the above provision, the amount of capital gains tax is changed to the amount of capital gains tax calculated on the basis of the standard market price.

(3) On July 31, 2007, the Defendant rendered the instant disposition rejecting the Plaintiff’s claim for correction on the ground that the Nonparty Company, the transferee of the instant real estate, was not designated as a public project operator until the time of transfer of the instant real estate.

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

(1) Seoul Mapo-gu, which belongs to the instant real estate, was designated as a speculative district other than the housing on June 30, 2005. Meanwhile, the Mapo-gu, Seoul, where the instant real estate is located, was designated as a balanced development facilitation district on November 18, 2003 by the notification of Seoul, Seoul, which was designated as a balanced development facilitation district on November 18, 2003, and was designated and publicly notified as an urban environmental improvement district under Article 2006-87 of the Seoul, Seoul, Seoul, which was publicly notified

(2) The non-party company acquired the instant real estate, etc. to implement an urban environment improvement project within 001 zone, while formulating an urban environment improvement project implementation plan for 001 zone, and was notified by the head of Mapo-gu Seoul Metropolitan Government on May 4, 2006 of measures to preserve cultural heritage related to an urban environment improvement project. On June 19, 2006, the non-party company received conditional decision on traffic impact assessment from the Seoul Metropolitan Government Traffic Impact Deliberation Committee. On June 29, 2006, the non-party company was notified of the results of prohibited acts and cancellation of facilities in the school environmental sanitation and cleanup zone, and was notified by the head of Mapo-gu Seoul Metropolitan Government Construction Committee on June 30, 2006.

(3) After that, the non-party company filed an application with the head of Mapo-gu on December 22, 2006 for authorization to implement the urban environmental improvement zone for the real estate of this case, which was after the date of settling the balance, and on May 25, 2007, the head of Mapo-gu notified and notified the non-party company as project implementer of the authorization to implement the urban environmental improvement zone.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 7, Eul evidence No. 1, the purport of the whole pleadings

2. The parties' arguments and issues

As the Plaintiff acquired the instant real estate before the designation of a rearrangement zone, which is the time of acquisition stipulated in the special taxation provisions of this case, and transferred it to the assignee of the urban environment rearrangement project, on December 7, 2006, within the time of its transfer, the Plaintiff asserts that the instant special taxation provisions apply in calculating the transfer income tax following the transfer of the instant real estate, and that the disposition of this case, which rejected 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 this case, was not authorized to implement the urban environment rearrangement project until the time of transfer of the real estate in this case.

Therefore, the issue of this case is whether the special taxation provisions of this case can be applied in calculating the transfer income tax by deeming the project implementer in an unauthorized state as the project implementer stipulated in the special taxation provisions of this case, in case where the project implementation implementation is performed after transferring the land to the project implementer who implements the project without obtaining authorization for the project implementation within the urban

3. Related 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 actual transaction value of the relevant assets; however, Article 96 (1) of the same Act provides that the transfer value of the relevant real estate shall be based on the "standard market value as at the time of transfer of the relevant assets;" Article 96 (1) of the same Act provides that the transfer value of the relevant real estate shall be based on the "standard market value as at the time of 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 has been designated by Act No. 1 or 4 of the Housing Site Development Promotion Act (the provisions of this case shall be subject to 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, with the purpose of public interest, the above laws recognize 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 decision-making authority on the transfer value of the real estate, even if the transferor transfers the real estate to the project operator through consultation, cannot be considerably restricted, the legislative intent of the special taxation provision 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 is transferred or expropriated for the public interest purpose even within the speculative designated area (see Supreme Court Decisions 208Du12597, Feb. 26, 2009; 207Du12796, 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 subparagraph 8 of the Restriction of Special Taxation Act, etc. does not have any separate definition provision concerning the project executor, while Article 2 subparagraph 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 and Dwelling Conditions for Residents") 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 shall be deemed to mean only the project executor who has obtained the authorization for the implementation of the project in this case, or the project executor who has obtained the authorization for the implementation of the project in the improvement zone shall be interpreted to include it.

(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 language and text of the Act on the Regulation of Special Taxation, the project implementer is not expressly stipulated as the project implementer's project implementation authorization for the project under the Act on the Regulation of Special Taxation, but does not stipulate that the project implementer shall obtain authorization for the implementation of the project under the Act on the Regulation of Special Taxation as the requirement for the recognition of the project implementer. (2) The Act on the Regulation of Special Taxation and the Ordinance of the Ministry of Land, Infrastructure and Transport stipulates that if the project implementer is designated as the urban environment improvement zone after the designation of the urban environment improvement zone and the Act on the Regulation of Special Taxation and the Ordinance of the Ministry of Land, Infrastructure and Transport so that the project implementer may not obtain the approval for the implementation of the project under the Act on the Regulation of Special Taxation and the Act on the Regulation of Special Taxation and the Ordinance of the Ministry of Land, Infrastructure and Transport or the Act on the Regulation of Land, etc. (the Act on the Regulation of Special Taxation and the Ordinance on the Regulation of Special Taxation and the Act on the Regulation of Land, etc. for the Implementation of the project within the said Act.

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 refusing the plaintiff's request for correction on a different premise is unlawful.

5. Conclusion

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