logobeta
본 영문본은 리걸엔진의 AI 번역 엔진으로 번역되었습니다. 수정이 필요한 부분이 있는 경우 피드백 부탁드립니다.
arrow
(영문) 신축주택 취득자에 대한 양도소득세 과세특례 적용 여부(기각)
조세심판원 조세심판 | 2006-08-25 | 국심2006서1780 | 양도
[Case Number]

National High Court Decision 2006No1780 (Law No. 25, 2006)

[Items]

Transfer

[Types of Decision]

Dismissal

[Summary of Decision]

Even if a newly-built house acquired by a member of a reconstruction association after the acquisition period of the newly-built house was approved for use, the special taxation on transfer income tax on the person acquiring the newly-built house shall be applied in case where it

[Related Acts]

Special Cases of transfer income tax for the acquisitor of Newly-built houses under Article 99-3 of the Restriction of Special Taxation Act / Special cases of transfer income tax for the acquisitor of Newly-built houses

【Disposition】

I dismiss the appeal.

【Reasoning】

1. Summary of disposition;

On September 23, 1991, the claimant purchased OOOOOOOOOOOOO (hereinafter referred to as "previous apartment") in the same place as the reconstruction (as of September 6, 2000 on the date of approval for the business plan) of the Seoul Special Metropolitan City OOOOOOOOOOOOOOOOO (hereinafter referred to as "OOOOOOOOOOOOOOO" (hereinafter referred to as "the dispute apartment") and filed a registration of initial ownership on November 26, 2004 after obtaining approval for use on September 30, 204. The claimant transferred the issue apartment to OO on April 1, 2005, transferred the tax amount of KRW 560,560,000,000,000 from May 2, 2005, but submitted a written request for correction to the disposition agency by filing a return and filing a tax return.

On November 29, 2005, the disposition agency notified the applicant of the rejection of the request for correction on November 29, 2005, by deeming that the approval of use was not granted during the new house acquisition period (from May 23, 2001 to June 30, 2003).

On November 29, 2005, the claimant appealed and filed an appeal on May 12, 2006.

2. Opinions of the claimant and disposition agency;

A. The claimant's assertion

In the case of the key apartment, the approval for use (from May 23, 2001 to June 30, 2003) was obtained after the newly-built house acquisition period (from May 23, 2001 to June 30, 2003), but a sales contract was made for the general sale other than the shares of the union members within the newly-built house acquisition period. In the case of the share acquisition of union members and the general sale, the approval for use is granted after the expiration of the newly-built house acquisition period under Article 99-3 (3) of the Enforcement Decree of the Restriction of Special Taxation Act for the share of the union members, and it is unreasonable to reject a request by the disposition agency for correction to request the refund of the already reported and paid transfer income tax

(b) Opinions of disposition agencies;

In order to be subject to the special taxation of transfer income tax under Article 99-3 (1) of the Restriction of Special Taxation Act for newly-built house (including a house acquired by a member as prescribed by the Presidential Decree through a housing association or a rearrangement project association) constructed by himself, approval for use shall be obtained within the newly-built house acquisition period, but the key apartment is not subject to the reduction or exemption of transfer income tax under the Restriction of Special Taxation Act

3. Hearing and determination

A. Key issue

In case where a member of a housing association has sold a newly-built house acquired by the association in general under the proviso of Article 99-3 (3) 2 of the Enforcement Decree of the Restriction of Special Taxation Act, whether or not the special case of abatement or exemption of transfer income tax may be applied by applying Article 99-3 (1)

(b) Related statutes;

(1) Article 99-3 of the Restriction of Special Taxation Act (amended by Act No. 6762 of Dec. 11, 2002) (Special Taxation for Transfer Income Tax on Purchasers of Newly-Built Houses)

(1) With respect to the income accruing from a transfer of a newly-built house (including land attached to the relevant house, which is less than twice the total floor area of the relevant building; hereafter in this Article the same shall apply) falling under any of the following subparagraphs located in an area other than the area prescribed by the Presidential Decree, where a resident (excluding a housing construction business operator) makes or is likely to make a rapid increase in real estate prices in consideration of a national consumer price inflation rate and a rising rate of national house trade prices, within five years from the date of its acquisition, the tax amount equivalent to 100/100 of transfer income tax shall be reduced or exempted, and where the relevant newly-built house is transferred after five years from the date of its acquisition, the transfer income accruing for five years from the date of acquisition shall be subtracted from its income amount subject

1. In cases of newly-built house acquired from a housing developer:

A newly-built house acquired by a person who first concludes a sales contract and pays a down payment with a housing constructor during the period from May 23, 2001 to June 30, 2003 (hereafter in this Article, the newly-built house acquisition period) (including a house prescribed by the Presidential Decree, which is acquired through a housing association under the Housing Construction Promotion Act or an redevelopment association under the Urban Redevelopment Act): Provided, That a house that has been occupied as of the date of a sales contract or has a fact falling under

2. Where a newly-built house (including a house acquired by a housing association under the Housing Construction Promotion Act or a member as prescribed by the Presidential Decree through an redevelopment association under the Urban Redevelopment Act);

A newly-built house that has obtained approval or inspection for use (including approval for temporary use) within the newly-built house acquisition period

(2) Article 99-3 of the Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 17829, Dec. 30, 2002) (Special Taxation for Transfer Income Tax on Purchasers of Newly-built Houses)

(1) The term "area prescribed by Presidential Decree" in the main sentence of Article 99-3 (1) of the Act means the new urban area located in the mountain village in the mountain of a mountain village in each minute, which is designated and publicly notified as a planned area for housing site development under Article 3 of the Housing Site Development Promotion Act.

(3) The term “houses prescribed by the Presidential Decree” in Article 99-3 (1) 1 of the Act means the houses falling under any of the following subparagraphs:

1. A house remaining after a housing association under the Housing Construction Promotion Act or an redevelopment cooperative under the Urban Redevelopment Act (hereafter in this Article, referred to as the “housing association, etc.”) supplies to its members (hereafter in this Article, referred to as the “ remaining house”) and which is acquired by a person who concludes a sales contract directly with a housing association, etc. and pays the down payment within the new house acquisition period under Article 99-3 (1) 1 of the Act (hereafter in this

2. A house acquired by a member (referring to a member as of the date of authorization of a management and disposal plan under Article 34 of the Urban Redevelopment Act, or the date of approval of a project plan under Article 33 of the Housing Construction Promotion Act; hereafter in this subparagraph, the same shall apply) from a housing association, etc., and for which an approval for use or inspection for use is obtained at the expiration of the new house acquisition period: Provided, That it shall be limited to the case where a housing association, etc. has received the down payment by directly concluding a sales contract

(3) Addenda to the Restriction of Special Taxation Act (Law No. 6762 of Dec. 11, 2002)

Article 1 The Act shall enter into force on January 1, 2003.

Article 2. General Application Cases

(2) An outline of transfer income tax under this Act shall apply to the first transfer after this Act enters into force.

Article 29 Transitional Measures concerning Special Taxation of Transfer Income Tax for Purchasers of Newly-Built Houses

(1) In case where a newly-built house, which was first concluded with a housing constructor in accordance with the previous provisions of Article 9 (1) or 99-3 (1) prior to the enforcement of this Act, has been transferred after the enforcement of this Act, with respect to the calculation of the amount subject to abatement or exemption of transfer income tax and the amount subject to taxation of transfer income tax, the previous provisions shall be applied, notwithstanding the opening of a house under Article 99 (1) or 99-3 (1). In this case, the declass standard of a newly-built house as of the date when a sales contract was concluded and the down payment was paid or the approval or inspection for use

(2) Where a newly-built house under Article 99-3 (1) 2 commences its construction work for the newly-built house under this Act before this Act enters into force, and has obtained the approval for use or inspection for use (including the approval for temporary use) before June 30, 2003, the previous provisions shall, notwithstanding the opening of anO under Article 99-3 (1), be applied.

C. Facts and determination

(1) According to the instant taxation-related data, the following facts are revealed.

(A) The key apartment that was sold by the claimant was approved on September 30, 2004 and registered the preservation of ownership on November 26, 2004.

(B) The key apartment is the area for exclusive use by its occupant of 84.96 square meters and was transferred to Gao on April 1, 2005 to 560 million won. It does not constitute a high-priced house or a high-class house under the provisions of Article 156 of the Enforcement Decree of the Income Tax Act after the amendment and the amendment.

(C) The key apartment is located in Seoul Special Metropolitan City, and thus, it is a newly-built house within the area where the increase or decrease of real estate prices is likely to occur in consideration of the national consumer price inflation rate and the inflation rate of national house trade prices as stipulated in Article 99-3(1) of the Enforcement Decree of the Restriction of Special Taxation Act, amended by Presidential Decree No. 6762, Dec. 11, 2002; and Article 99-3(1) of the same Act, amended by Presidential Decree No. 17829, Dec.

(D) General sales contract was concluded during the period of June 25, 2001 to June 27, 2001 for those other than partners.

(2)In the case of the key apartment acquired as a member of the reconstruction association in the capacity of the claimant, the disposition authority agrees that it constitutes reduction or exemption of capital gains tax by obtaining approval for use (including approval for temporary use) within the new house acquisition period (9. 5. 23 to 2003. 6. 30). If the housing association et al. concluded a sales contract for the remaining house with a person other than the member and received the down payment within the new house acquisition period, the claimant asserts that the capital gains tax reduction or exemption provision of Article 99-3(1)1 of the Restriction of Special Taxation Act should also be applied to the portion sold by the member, such as the general sale period, in accordance with Article 99-3(3)2 of the Enforcement Decree of the Restriction of Special Taxation Act.

(A) Article 99-3(1)1 of the Restriction of Special Taxation Act provides that a newly-built house acquired by a housing construction proprietor shall be included in the case of a newly-built house constructed by himself/herself, and both subparagraphs 1 and 2 above include the cases of a house acquired by a housing association, etc.

A house acquired by a partner under Article 99-3 (3) 2 of the Enforcement Decree of the Restriction of Special Taxation Act shall be interpreted within the delegation ground of Article 99-3 (1) 1 of the Restriction of Special Taxation Act as a superior corporation. Therefore, it shall be interpreted only where a member participates in a general seller and acquires

Therefore, whether a partner's house acquisition falls under Article 99-3 (1) 1 of the Restriction of Special Taxation Act or Article 99-3 (1) 2 of the Restriction of Special Taxation Act should be determined depending on whether a partner acquires a house as a general seller or as a member'

(B) The claimant acquired the key apartment as a member of the association, and thus, the key apartment constitutes a newly-built house built by himself under Article 99-3(1)2 of the Restriction of Special Taxation Act.

(C) A newly-built house built by itself shall commence the construction of the relevant newly-built house before January 1, 2003, which was the effective date of this Act, under Article 29(2) of the Addenda of the Restriction of Special Taxation Act amended by Act No. 6762 of Dec. 11, 2002, and shall commence the construction of the relevant newly-built house before January 1, 2003, and have undergone the approval for use or inspection for use before June 30, 2003, notwithstanding the amended provisions of Article 99-3(1), it shall apply the previous provisions, and notwithstanding the provisions of the Restriction of Special Taxation Act amended on December 11, 202, it shall be determined whether it shall be reduced or exempted pursuant to the provisions of the Restriction of Special Taxation Act amended on December 11, 2002.

(D) This case is confirmed to have been approved for use on September 30, 2004 after the newly-built house acquisition period (from May 23, 2001 to June 30, 2003) passed by the claimant corresponding to the members of the reconstruction association. Thus, this case is not subject to the previous Act under Article 29(1) of the Addenda of the Restriction of Special Taxation Act amended by Act No. 6762 of December 11, 2002, but subject to the amended Act. In this case, the issue apartment is not subject to the newly-built house subject to the reduction or exemption, such as located in the Seoul Special Metropolitan City where the reduction or exemption is excluded, and it is determined that the disposition authority did not err

4. Conclusion

This case's request for a trial is without merit, so it is decided as ordered in accordance with Articles 81 and 65(1)2 of the Framework Act on National Taxes.

arrow