Whether a non-resident is exempt from taxation at the time of transfer after the acquisition of one house for one household by participating in redevelopment as a partner;

Although the plaintiff became a redevelopment partner as a resident and concluded a sales contract for the apartment of this case, the plaintiff acquired the apartment of this case as a non-resident's status, so it should be deemed that the plaintiff failed to meet the non-taxation requirements for one house for one household.

Article 89 of the Income Tax Act, Article 154 (1) of the former Enforcement Decree of the Income Tax Act

Article 94 of the Income Tax Act

1. All of the plaintiff's claims are dismissed.

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

The defendant's refusal to correct the transfer income tax of 62,528,070 won in the second quarter of 2006 against the plaintiff on June 22, 2007 shall be revoked.

1. Details of the disposition;

A. On January 11, 1989, the Plaintiff acquired 7,00,000,000 won 435- ○○○○○dong, 435- 66.11m2 from Ma○dong, Seoul around 1989, and acquired 14,31,70m2 from ○○○○○○dong, Seoul, 339- 33.06m2 from ○○○○○ Industrial Corporation on July 6, 1989. However, when the area including the above land was designated and publicly notified as the redevelopment district of Housing Improvement Cooperatives, Zone 5-2, Housing Improvement Association (hereinafter referred to as the “In-house Redevelopment”), the Plaintiff provided the above land to the non-party partnership, and acquired the right to sell the apartment after obtaining approval of the management disposition plan on June 15, 1995, and completed the sales contract for the non-party apartment to be constructed as the redevelopment project between the non-party association and the non-party company on August 30, 199, 1997.

B. However, the Plaintiff and all members of the household have moved to Indonesia by following the procedures under the Emigration Act on October 15, 1992, when the redevelopment project was in progress, and the resident registration was cancelled. On May 21, 1997, the Plaintiff lost the nationality of the Republic of Korea and acquired the Indonesia nationality. On November 28, 2006, the Plaintiff did not have the occupation right of the Plaintiff and the members of the household, at the time of transfer that the instant apartment was transferred to ○○○ on November 28, 2006 to KRW 550 million.

On December 12, 2006, the Plaintiff filed a preliminary return on the tax base of transfer income by making the transfer value and acquisition value of the apartment of this case to the Defendant as the actual transaction value, and voluntarily paid capital gains tax of KRW 62,528,073 accordingly.

C. After that, the Plaintiff asserted that the special provisions on non-taxation on one house for one household should apply to the Plaintiff’s acquisition of the apartment of this case as a resident. Accordingly, the Defendant filed a claim for correction with the Defendant on April 24, 2007. As the time when the Plaintiff acquired the apartment of this case on October 2, 1997, the date when the Plaintiff acquired the apartment of this case was approved, the date when the Plaintiff acquired the apartment of this case as a non-resident after emigration, and thus the Plaintiff cannot be subject to the non-taxation provisions on non-taxation on transfer of one house for one household.

[Ground of recognition] Facts without dispute, Gap 1 through 9 evidence, Eul 1-2 and 3's statements, the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

(1) According to the former Income Tax Act, etc. applied at the time of the transfer of the apartment of this case, where one house for one household, which was acquired by the residing household, departs from the country due to emigration under the Emigration Act and transfers the apartment house to December 31, 2007, the non-taxation provisions on one house for one household without limitation on the retention period and the period of residence apply to the case where the Plaintiff becomes a resident and becomes a redevelopment partner, and completed the act of causing the acquisition of the apartment of this case by concluding the sales contract for the apartment of this case. Thus, even if the Plaintiff acquired the apartment of this case under the status of becoming a non-resident due to emigration, the non-taxation provisions on one house for one household without limitation on the retention period and the period of residence apply to the Defendant’s disposition otherwise reported.

(2) The principle of tax equality is against the principle of tax equality in cases where a person who held a "house" and became a member of the redevelopment association transfers the status of a member who could purchase an apartment house against the redevelopment association before the approval of the management and disposal plan, if he/she satisfies the requirements, such as holding period, the transfer of one house per household and the ownership of only the "land," as the object of non-taxation, is not subject to non-taxation.

(3) In the event that the sales contract for the new apartment was concluded and the whole household acquired the new apartment after leaving the country due to emigration to the Emigration before its acquisition, it would be contrary to the principle of tax equality in application of the non-taxation provision on one house for one household (Sag-884, June 3, 2005) (Sag-884, June 3, 2005).

(b) Related statutes;

Article 1 of the Income Tax Act

Article 3 of the Income Tax Act

Article 89 of the Income Tax Act

Article 94 of the Income Tax Act

C. Determination

(1) As to the plaintiff's first argument

(A) Article 1 (1) of the former Enforcement Decree of the Income Tax Act (amended by Act No. 8144 of Dec. 30, 2006; hereinafter referred to as the "Act") provides that "resident who has a domicile in Korea or has a domicile in Korea for not less than one year shall be "non-resident"; Article 89 (1) 3 of the Enforcement Decree of the Income Tax Act provides that "one house for one household prescribed by the Presidential Decree" and income accruing from the transfer of a specific land appurtenant thereto shall not be subject to capital gains tax; Article 154 (1) 2 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 20618 of Feb. 22, 2008; hereinafter referred to as the "Enforcement Decree of the Income Tax Act") provides that "one house for one household shall be transferred within the period of 20 years prior to the date of departure from Korea"; Article 154 (2) (b) of the former Enforcement Decree of the Income Tax Act provides that the house shall be transferred within 13 years prior to the date of transfer.

(B) In full view of the above provisions, in case where a person who acquired a house as a "resident" departs from Korea and becomes a non-resident under the Emigration Act, and transfers the house, he shall not be subject to taxation on capital gains as one house for one household without being subject to restrictions on the period of possession and residence, if there is no other house except for the house transferred as of the date of transfer.

(C) According to the above facts, the time of acquiring the apartment of this case is October 2, 1997 (Article 162 (1) 4 of the amended Enforcement Decree), and the plaintiff and the head of the household came to be the "non-resident who has no domestic address and residence" due to the moving into Indonesia and cancellation of the resident registration after undergoing the procedures under the Emigration Act on October 15, 1992. Thus, since the plaintiff acquired the apartment of this case as the status of "non-resident", it shall be deemed that the plaintiff did not meet the non-taxation requirements for one house per one household. Although the plaintiff became a redevelopment partner as the resident and concluded the sales contract of the apartment of this case, although the plaintiff cannot be deemed to have acquired the real estate under Article 94 (1) 2 (a) of the Act, the plaintiff's right to sell the apartment of this case or the right to sell the apartment of this case was not subject to the non-taxation provisions for the transfer of the apartment of this case, and the plaintiff's assertion in this part of this case is without merit.

(2) As to the second argument by the Plaintiff

(가) 개정 전 시행령 제155조 제16항은 도시재개발법에 의한 재개발조합의 조합원으로서 도시개발법 제34조의 규정에 의한 관리처분계획의 인가을(그 전에 기존주택이 철거되는 경우에는 기존주택의 철거일) 현재 154조 제1ㅎ아의 규정에 해당한는 기존주택을 소유하는 자가 재개발조합을 통하여 취득한 입주자로 선정된 지위(이에 부수되는 토지를 포함한다)를 양도하는 경우 양도일 현재 다른 주택이 없는 경우에는'1세대 1주택'으로 본다고 규정하고 있다.

(B) The purport of the above provision is to exempt transfer income tax even though it falls under the "right to acquire real estate", not "land" at the time of redevelopment, and the right to purchase land acquired by the redevelopment partner is treated as a house and it is not necessary to apply the non-taxation provision of the house for one household as well as the re-developed house in case of redevelopment of the previous house, and the redevelopment right has been extended or changed as well as the re-developed house, and it is not reasonable to impose a tax on transfer of the re-developed house after the completion of the re-developed house. Therefore, it is not reasonable to impose a tax on transfer of the right to sell land before the completion of the re-developed house. Therefore, in light of the above purport of the above provision, as long as there is reasonable ground to treat the two differently, this part of the plaintiff's assertion cannot be viewed as violating the principle of tax equality.

(3) As to the plaintiff's third assertion

This part of the plaintiff's assertion is without merit, unless there is no evidence to view that the right to sell a new apartment is non-taxable by applying the non-taxation rule of one house for one household to the right to sell a new apartment, and is actually non-taxable.

3. Conclusion

Thus, the plaintiff's assertion seeking the cancellation of the disposition of this case cannot be accepted.