Early High Court Decision 2008J 028 (No. 25, 2008)

The provisions of non-taxation for one household shall not apply to the possession of a partner's right of residence and a house.

Where one household possesses a house and an association member's relocation right as well as an association member's relocation right after being regarded as a house from January 1, 2006 following the amendment of the Act, and one household transfers the house, the association member's relocation right shall be deemed as a house, and the special provisions on non-taxation of one house for

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

Article 89 (Non-Taxable Transfer Income Tax)

Article 154 (Scope of One House for One Household)

1. The plaintiff's claim is dismissed.

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

The Defendant’s rejection of correction of KRW 42,885,720 of the transfer income tax corresponding to the Plaintiff in 2006 on October 5, 2007 shall be revoked.

1. Circumstances of the disposition;

A. On November 30, 1999, the Plaintiff acquired ○○○ apartment 10,000 Dong 10,000 (hereinafter “instant apartment”).

B. On May 2, 2002, the Plaintiff’s wife, acquired ○○○○○ Dong-dong 06, ○○○○○○○○○, 06. The housing reconstruction improvement project for the ○○○ Dong-dong ○○○○, including the above Rap loan was implemented, and the Gap loan acquired the apartment sale right (hereinafter “instant apartment sale right”) as the management and disposal plan was approved on May 19, 2005 after the project implementation authorization was granted on June 29, 2006.

C. On September 19, 2006, the Plaintiff transferred the instant apartment in 414,000,000 won to Manana, and around that time, the Plaintiff deemed that the special provisions on non-taxation for one house for one household on the transfer of the instant apartment do not apply to the Defendant, and reported and paid KRW 42,885,720 of the transfer income tax.

D. After that, the plaintiff filed a claim for correction of the purport that the transfer of the apartment of this case is subject to the special provisions on non-taxation of one house for one household. On August 28, 2007, the plaintiff filed a claim for correction of KRW 42,885,720 of the transfer income tax paid as above. The defendant on October 15, 2007, when the apartment of this case was transferred, owned the association member's relocation right approved after January 1, 2006, and should be included in the calculation of the number of houses. Thus, the plaintiff rejected the plaintiff's claim for correction on the ground that the transfer of the apartment of this case constitutes two houses for one household (hereinafter referred to as "disposition of this case").

E. On December 31, 2007, the Plaintiff filed an appeal with the Tax Tribunal on December 31, 2007.

7.25. was dismissed.

2. Whether the disposition is lawful or not: Facts without dispute; entries in Gap evidence 1 through 6; and the purport of the whole pleadings

A. The plaintiff's principal

Article 155 (16) of the Enforcement Decree of the Income Tax Act prior to the amendment by Presidential Decree No. 18850 of May 31, 2005 provides that if a person who owns an existing house falling under one share of one household as of the "project implementation authorization date" transfers the right to sell a re-construction apartment unit, he/she shall be deemed as one house for one household. However, as the above provision was amended by Presidential Decree No. 18850 of May 31, 2005, the above "project implementation authorization date" was changed to the "authorization date of the management and disposition plan", but Article 155 of the Enforcement Decree of the Income Tax Act shall apply to the special cases of the housing reconstruction project's members who were authorized to implement the project implementation before the enforcement date of the amended Enforcement Decree of the Income Tax Act.

However, since the right to parcel out of this case was acquired through a housing reconstruction project approved on May 19, 2005 by the project implementation, such transfer shall be deemed non-taxation as the transfer of one house for one household by applying the previous enforcement decree.

(b) Related statutes;

Article 89 (Non-Taxable Transfer Income Tax)

Article 154 (Scope of One House for One Household)

C. Determination

(1) Under the Income Tax Act, where one house for one household equipped with certain requirements is transferred, the special provisions on non-taxation of transfer income tax are stipulated. However, since the number of association members' relocation rights due to redevelopment or reconstruction is not treated as a house, the number of association members' relocation rights in calculating the number of houses owned by one household was not considered, but Article 89 (2) of the Income Tax Act (hereinafter referred to as the "Article 7837 of the Income Tax Act") is newly established on December 31, 2005, and the same is deemed as a house due to the enforcement of January 1, 2006, and where one household transfers the house while possessing the house as the house and the association member's relocation rights as the house, the special provisions on non-taxation of one house for one household were not applied to the association member's relocation rights, and the special provisions on non-taxation of one house after the date of acquisition of the management and disposal plan of this case, the provisions on non-taxation of this case are not applied retroactively to the person who acquired the association of this case.

(2) As seen earlier, since the right to sell the instant apartment was acquired as the plaintiff's wife due to the approval of the management and disposition plan on June 29, 2006, the special provisions on the housing unit 1 for one household were deemed to be a house in the application of the special provisions on the housing unit 1 for one household. The plaintiff had the right to sell the instant apartment, which is regarded as one household with the right to sell the instant apartment, as well as the right to sell the instant apartment, and transferred the instant apartment, and thus, the special provisions on the non-taxation of the housing unit 1 for one household cannot be applied. Accordingly

(3) Meanwhile, Article 155(16) of the Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 18850, May 31, 2005) stating that the Plaintiff shall apply to the transfer of this case, where one household that does not own a house transfers the association member's relocation right, the transfer income tax shall not be imposed by applying the special provisions on non-taxation of one house for one household under certain conditions. Thus, the case where the apartment of this case, which is not the association member's relocation right, is not applicable to the transfer of this case.

3. Conclusion

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