Early High Court Decision 201Du1286 ( October 23, 2011)

A union shall not recognize the fact that it concludes a sales contract for remaining housing with a person other than its members and receives the down payment.

A union cannot recognize the fact that it received the down payment by directly concluding a sales contract for the remaining house with a person other than the union members within the acquisition period of a new house, and thus, a union member is not eligible for the reduction or exemption in cases where he/she received the new house from the union

2011Guhap1106 Revocation of Disposition of Imposing capital gains tax

XX

Head of Suwon Tax Office

November 2, 2012

November 16, 2012

1. The plaintiff's claim is dismissed.

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

The disposition of imposition of capital gains tax of 000 won for the year 2007 against the Plaintiff on November 12, 2010 shall be revoked.

1. Details of the disposition;

A. The non-party-party-1 regional housing association (hereinafter referred to as the "non-party-party-party-1 regional housing association") under the former Restriction of Special Taxation Act (amended by Act No. 6762 of Dec. 11, 2002, hereinafter the same) was authorized by the competent authority on May 15, 2002 after obtaining authorization for establishment from the competent authority on September 9, 2002, newly constructed 231 households of apartment units, including X-dong 000, Dongdaemun-gu, Seoul, and obtained approval for use of each of the above houses on April 12, 2005.

B. On June 15, 2005, the Plaintiff acquired the above apartment house Nos. 000,000 (hereinafter “the instant real estate”) from the non-party partnership, and transferred the instant real estate to the non-party Ga on May 21, 2007.

C. While the approval date of use of the instant real estate ( April 12, 2005) falls after the acquisition period of a newly-built house under Article 99-3(1) of the former Restriction of Special Taxation Act (from May 23, 2001 to June 30, 2003), the Plaintiff filed an application for reduction or exemption of the relevant transfer income tax with the Defendant by asserting that the remainder remaining after the non-party association supplied to the said association members among the said apartments should be sold to persons other than the association members within the acquisition period of the newly-built house and received the down payment. As such, the Plaintiff claimed that the transfer income tax of the instant real estate should be fully reduced or exempted in accordance with the "special taxation of transfer income tax on the acquisitor of the newly-built

D. The Defendant denied the relevant capital gains tax reduction or exemption and notified the Plaintiff on November 12, 2010 on the ground that the Plaintiff’s transfer of the instant real estate does not constitute the reduction or exemption of capital gains tax under Article 99-3(1) of the former Restriction of Special Taxation Act, on the grounds that the Nonparty union could not recognize the fact that the said apartment was sold to persons other than the association members within the acquisition period of newly-built house. (hereinafter “instant disposition”).

D. The Plaintiff dissatisfied with the instant disposition and filed an appeal with the Tax Tribunal on June 23, 201, but the said claim was dismissed.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 3, Eul evidence Nos. 1, 2 and 5 (including provisional number), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The instant disposition shall be revoked on the grounds that it is unlawful for the following reasons.

(1) During the acquisition period of a newly-built house under Article 99-3(1) of the former Restriction of Special Taxation Act, the non-party association sold the relevant house to Non-party KimB, MaCC, DoDD, and MaE, who is not a member of the association, and received the down payment. Therefore, the Plaintiff’s transfer of the instant real estate constitutes the subject of the special taxation of capital gains tax under Article 99-

(2) The Plaintiff was originally located in Dongdaemun-gu Seoul, the location of the instant real estate, and did not have any connection with the XXdong, and the sales advertisement that only is exempted from capital gains tax, and became the purchase of the instant real estate from the Nonparty Cooperative. Therefore, the Plaintiff is merely a member of the Nonparty Cooperative and a general buyer. Therefore, the capital gains tax on the Plaintiff should be reduced or exempted under the substance over form principle.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(1) As to the first argument

(A) Article 99-3(1) of the former Restriction of Special Taxation Act provides that the tax amount equivalent to 100/100 of capital gains tax shall be reduced or exempted for the income accruing from the transfer of a newly-built house falling under any of the following subparagraphs within five years from the date of its acquisition, and that "the case of newly-built house acquired from a housing construction business operator" under subparagraph 1, and that "the person who first concludes a sales contract with a housing constructor during the period from May 23, 2001 to June 30, 203 (hereinafter "the acquisition period of a newly-built house") and directly acquires a newly-built house after concluding a sales contract for the newly-built house within the period from May 23 to June 30, 203 (hereinafter "newly-built house acquisition period"), and Article 99-3(3) of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 17458, Dec. 31, 201; hereinafter the same) provides for the remaining period of the newly-built house under the Housing Act:

In light of the fact that Article 99-3 (1) 1 of the former Restriction of Special Taxation does not stipulate only the "house prescribed by the Presidential Decree" as remaining house, and the contents of Article 99-3 (3) 2 of the former Enforcement Decree of the Restriction of Special Taxation Act, in case where a housing association, etc. directly concludes a sales contract for the remaining house with a person other than its members and received the down payment within the acquisition period, it is reasonable to view that the so-called "house supplied by its members from the housing association, etc., for which approval for use or inspection for use after the expiration of the acquisition period of the newly-built house, is included in the satch housing, which is the capital gains tax reduction or exemption under Article 99-3 (1) 1 of the former Restriction of Special Taxation Act (see, e.g., Supreme Court Decision

(B) On the basis of the foregoing legal doctrine, the Plaintiff was supplied with the instant real estate, a newly-built house, which was a newly-built house from the said association, as a member of the non-party association. The Plaintiff (the instant real estate was registered in the name of the Plaintiff on June 15, 2005) and the non-party association obtained approval for the use of the instant real estate on April 12, 2005 after the acquisition period of the newly-built house. Therefore, for the transfer of the instant real estate supplied by the Plaintiff to become eligible for reduction of capital gains tax under Article 99-3(1) of the former Restriction of Special Taxation Act, the non-party association should be acknowledged to have concluded a sales contract for the remaining house with a person other than the association members from May 23, 2001 to June 30, 2003, which is the acquisition period of

However, in light of the following circumstances acknowledged by the purport of Gap evidence Nos. 2 and Eul evidence Nos. 3 through 9 (including paper numbers) and the entire purport of pleadings, it is insufficient to recognize the fact that the non-party association directly concluded a sales contract with a person other than the association members and received the down payment for the remaining house from May 23, 2001 to June 30, 2003, the acquisition period of newly-built house by the fact inquiry with the head of Dongdaemun-gu. Accordingly, this part of the plaintiff's assertion is without merit.

① The non-party association initially obtained approval for the new construction and sale of housing units 231 households, and the number of the units of housing units is the same as the number of members of the above association at the time. The non-party association is a local union under the former Housing Construction Promotion Act (amended by Act No. 6916 of May 29, 2003) and, in principle, limited to the general sale of housing units for persons other than its members.

② On May 15, 2002, the non-party union was running a housing construction project without withdrawal or change of name from the association members until August 28, 2003, when the number of union members was 231 and the authorization for establishment was obtained from the competent authority. Therefore, it should be deemed that it is practically impossible for the non-party union to enter into a sales contract for the remaining housing with a non-union member on or before June 30, 2003, which is the expiration date of the acquisition period of a newly-built house and receive the down payment.

③ 원고는 소외 조합이 신축주택 취득기간 내에 그 조합원이 아닌 김BB, 윤CC, 지DD, 최EE 등에게 주택을 매도하고 그 계약금을 납부받았다고 주장한다. 그러나 ㉠ 윤CC, 지DD, 최EE은 피고의 세무조사 당시 "조합원이 아닌 일반수분양자로서 주택을 분양받은 것이 아니라, 조합원 중 결격사유가 있어 자격을 상실하거나 조합을 탈퇴한 자들을 승계하여 주택을 분양받은 것이다 는 취지로 진술한 점, ㉡ 김BB은 피고 측 세무공무원과의 통화 당시 "실제 분양계약서 작성일은 2003년 하반기에서 2004년 상반기 정도로 기억한다 라고 진술한 점, ㉢ 김BB이 분양계약금을 지급하고 수령한 영수증(을 제9호증)에는 계약금 지급일자가 2004. 3. 11.로 기재되어 있는 점, ㉣ 원고가 제출한 김BB 명의의 분양계약서(갑 제6호증)에는 그 작성일이 2002. 3. 18로 기재되어 있으나 위 분양계약서에 주택조합장으로 기재된 이FF은 실제로는 2003. 2. 27. 조합장으로 선출되었고, 해당 아파트의 동호수 추첨도 2003. 4. 26.경 이루어졌으므로 위 작성일자를 그대로 믿기는 어려운 점 등을 종합하면, 원고의 위 주장은 받아들일 수 없다.

(2) As to the second argument

The legislative intent of Article 99-3 (1) of the former Restriction of Special Taxation Act and Article 99-3 (3) 2 of the Enforcement Decree of the same Act, which stipulate the special cases of reduction and exemption of capital gains tax, is to correct the portion of sale in general when a housing association, etc. newly constructs or sells a reconstruction apartment within the acquisition period, and pays the down payment, the amount of sale in general constitutes the special cases of capital gains tax under the former Restriction of Special Taxation Act, while the portion of sale in lots by members of the same apartment does not fall under the special cases of capital gains tax,

In light of the above legal principles, as seen earlier, the fact that the Plaintiff joined the non-party partnership as a member and purchased the real estate of this case is difficult to view that the Plaintiff constitutes a general buyer who is not a member of the Plaintiff solely based on the descriptions of Gap evidence Nos. 3 through 6 (including the virtual number). Even if not, insofar as the Plaintiff acquired the real estate of this case after the acquisition period of the newly-built house, as long as the Plaintiff acquired the real estate of this case after the said acquisition period, the mere circumstance as the Plaintiff asserted, cannot be deemed that the transfer of the real estate of this case constitutes an exemption from capital gains tax under Article 99-

(3) Sub-decisions

Therefore, the Defendant’s disposition denying the relevant transfer income tax reduction and exemption is lawful, deeming that the transfer of real estate by the Plaintiff does not constitute the reduction and exemption of transfer income tax under Article 99-3(1) of the former Restriction of Special Taxation Act.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so decided as per Disposition.