Scope of application of special long-term holding deduction for association member's relocation rights deemed one house at one age;

After the decision of the Supreme Court, the revised Income Tax Act limits transfer margin to the scope of special deduction for long-term holding after the decision of the Supreme Court, but adjusts to apply the high deduction rate in the case of one partner. There is no illegality in the disposition of this case.

Article 95 of the Income Tax Act

2017Gudan8181 Revocation of Disposition of Imposing Transfer Income Tax

fixed**

*the Director of the Tax Office

August 29, 2017

September 26, 2017

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The Defendant’s disposition of imposition of KRW 57,217,100 against the Plaintiff on March 11, 2016 shall be revoked.

1. Details of the disposition;

(1) On December 30, 1987, the Plaintiff and Jeong Jong* (the Plaintiff’s referred to as the Plaintiff) acquired a new distribution apartment (the 2-1/2 shares of each 1/2 shares of each 1/2 shares) with respect to the above new distribution apartment (the 1/2 shares of each 1/2 shares). The new distribution apartment was established by the 1st house reconstruction and rearrangement project association, and the house reconstruction and rearrangement project was in progress on August 24, 2010, and the management and disposal plan was approved on August 24, 2010, the Plaintiff and

Shell* on May 31, 2013 and transferred the above association member's relocation rights (each co-ownership of 1/2) to 1.55 billion won.

Consolidatedly, the Plaintiff and * shall apply the long-term possession special deduction to only the transfer marginal profit from the transfer marginal profit of the management and disposal plan of the shares on July 30, 2013, and transfer to 2013, respectively.

Income tax of 66,79,121 won was reported and paid.

Applicant* Ha* stated that the defendant on March 10, 2014, and the above association member's relocation right deemed as a high-priced house exceeding KRW 900,000 of one house for one household is not subject to the special long-term holding deduction, but subject to the special long-term holding deduction for the total transfer margin, and that the special long-term holding deduction for the transfer margin is applied to the whole transfer margin.

(v) the Defendant accepted the above request for correction on May 22, 2014 and refunded KRW 57,235,280 to ** the transfer income tax reverted to year 2013.

⑹ 그런데 부산지방국세청장이 2015. 7.경 피고에 대한 종합감사를 실시하여 '관리처

special deduction for long-term possession does not apply to gains from transfer after the date of authorization of a plan for division.

In order to point out, the defendant denied the long-term possession special deduction amount for transfer margin after the approval plan for the management and disposal plan for the plaintiff who is the sole heir of * (Death at the end of December 2014) on March 11, 2016, and issued the "disposition" to correct and impose capital gains tax of 57,217,100 won for the transfer margin belonging to 2013.

⑺ 원고는 이 사건 처분에 불복하여 2016. 4. 20. 조세심판원에 심판청구를 제기하였

As the Tax Tribunal did not decide on the above appeal, the case was filed on August 1, 2017).

Facts that there is no dispute over the basis of recognition, Gap evidence 1 through 10, Eul evidence 1 through 4, the whole pleadings

Purport

2. Whether the instant disposition is lawful

(i) Article 95 of the former Income Tax Act (Amended by Act No. 13558, Dec. 15, 2015; hereinafter the same shall apply)

Articles 1, 2 and 89 (2) shall implement housing reconstruction projects or housing redevelopment projects.

A management and disposition plan under Article 48 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents.

Where the association member's relocation right acquired by authorization is transferred, the period of holding transfer of such assets;

The amount calculated by multiplying the deduction rate of 30/100 for each individual by the special deduction rate for long-term possession shall be below the amount of special deduction for long-term

section 95(2) provides that such deduction shall be made from gains on transfer, and the third subsection of section 95(2)

H. The Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents limits the transfer margin of its assets to the "transfer margin of the land or buildings before the approval plan for the management and disposal plan under Article 48 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents". In addition, the proviso of Article 95 (2) stipulates that the deduction rate of 80/100 for each holding period of the assets shall be applied to the assets which correspond to one house for one household prescribed by Presidential Decree.

Article 95(2) of the Income Tax Act prior to the amendment by Act No. 11611, Jan. 1, 2013, based on whether a person falls under one house for one household, the proviso of the special deduction rate for long-term possession was differently stipulated in the main sentence. The scope of gains on transfer of assets is one house for one household and the case where the scope of gains on transfer of assets is not different. The basic structure of this provision is the same even after the amendment of the foregoing provision is added to the special deduction for long-term possession and the instant provision was newly established.

In addition, in light of the fact that the special long-term holding deduction is a system prepared to deduct the inflation of capital gains that include the inflation of nominal income due to price increase, the legislators seem to limit the scope of capital gains subject to the special holding deduction prior to the approval plan for the management and disposal plan to exclude development gains from those subject to the special holding deduction for long-term holding and reconstruction among capital gains at the time of the enactment of the instant comprehensive holding provision, and it cannot be viewed as a different association member's relocation right that is deemed as one house for one household.

In full view of the language, structure, amendment history, and purport of the relevant provisions, where an association member's relocation right is deemed as one house for one household prescribed in Article 154(1) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 26763, Dec. 28, 2015) and exceeds KRW 900 million pursuant to Article 15(17) of the former Enforcement Decree of the Income Tax Act, the subject of the special deduction for long-term possession is limited to "the gains on transfer of land or buildings prior to authorization of the management and disposition plan for the transfer of the association member's relocation right" among the gains on transfer of the association member's relocation right, and the deduction rate prescribed in the proviso is applied, and it is reasonable to deem that the subject of the special deduction for long-term possession does not extend to the gains on transfer of the association member's relocation right as a whole, unlike "where the subject of the special deduction for long-term possession is not one house for one household."

Dob. The plaintiff shall apply the proviso of Article 95 (2) of the former Income Tax Act to the transfer income of the above association member's relocation

In addition, even if "transfer margin prior to approval of a management and disposition plan," it is not possible to deduct the amount of special deduction for long-term holding by applying the deduction rate (attached Table 2) of the above proviso, and the defendant, applying the main sentence of Article 95 (2) of the former Income Tax Act only to "transfer margin prior to approval of a management and disposition plan," thereby deducting the amount of special deduction for long-term holding by applying the deduction rate (attached Table 1) of the above main sentence.

However, as seen earlier, even if the association member's relocation right is deemed as one household, the object of special deduction for long-term holding should be applied only to the "transfer margin prior to the authorization of the management and disposition plan" under the main sentence of Article 95 (2) of the former Income Tax Act, and the amount of special deduction for long-term holding should be deducted, so the plaintiff's assertion that has different legal views is groundless.

3. Conclusion

Therefore, the plaintiff's claim is dismissed for lack of reason.