[1] The meaning of "where no other house exists as of the date of transfer, it shall be deemed as one house for one household under the provisions of Article 154 (1) 2 (a) of the former Income Tax Act, notwithstanding the provisions of Article 94 (1) 2 (a) of the former Income Tax Act."

[2] In a case where one association member's relocation right was acquired by acquiring one association member's relocation right as of the date of the management and disposal plan for Gap's apartment reconstruction association, and one association member's relocation right was reported and paid on the date of the management and disposal plan, and thereafter the above transfer is subject to non-taxation of transfer income tax under Article 155 (16) of the former Enforcement Decree of the Income Tax Act, the case holding that Gap's relocation right is not subject to non-taxation of transfer income tax on the ground that it is held by another association member's relocation right at the transfer date, and thus, it does

[1] Article 94(1) of the former Income Tax Act (amended by Presidential Decree No. 8144 of Dec. 30, 2006), Articles 154(1) and 155(16) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 18850 of May 31, 2005), Article 94(1) of the former Income Tax Act / [2] Article 94(1) of the former Income Tax Act (amended by Presidential Decree No. 8144 of Dec. 30, 2006), Articles 154(1) and 155(16) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 18850 of May 31, 2005), Article 15(1) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 19890 of Feb. 28, 2007), Article 15(15)

Plaintiff

Head of Central Tax Office

Seoul High Court Decision 2009Nu34152 decided June 9, 2010

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

The facts duly confirmed by the court below are as follows. The plaintiff acquired the main apartment house 119 Dong 302 (hereinafter "the first house of this case") located in Yang-dong (hereinafter omitted) on December 3, 1996, and acquired the same apartment house 118 Dong 403 (hereinafter "the second house of this case") on September 28, 200. The housing reconstruction and rearrangement project association, the reconstruction association of the above main apartment, obtained the approval of housing reconstruction project on May 16, 2005 and obtained the approval plan for the management and disposal plan on December 28, 2006, the plaintiff acquired the non-taxation right of this case 1 and 2 houses of this case from the defendant on December 28, 2006, and transferred the non-taxation right of this case to the defendant on the ground that it transferred the non-taxation right of this case 1 and 3 houses of this case to the defendant on December 28, 2006 (hereinafter "the transfer right of this case").

Article 15 (16) of the former Enforcement Decree of the Income Tax Act stipulates that "No transfer income tax shall be levied on the transfer of one house for one household" by a cooperative member (in the case of a housing redevelopment project, the date of authorization for management and disposal plan under Article 48 of the same Act, and in the case of a housing reconstruction project, the date of authorization for project implementation under Article 28 of the same Act or before the date of removal of the existing house, it shall be limited to the owner of the existing house falling under Article 154 (1) of the same Act as of the date of removal of the existing house), notwithstanding the provisions of Article 94 (1) 2 (a) of the former Enforcement Decree of the Income Tax Act, Article 155 (16) of the former Enforcement Decree of the Income Tax Act provides that "no other house as of the date of transfer shall be imposed on the date of authorization for the implementation of the housing reconstruction project under Article 154 (1) 2 (a) of the same Act, and the former Enforcement Decree provides that "no more than 15th of the amended Enforcement Decree of the Income Tax Act shall be enforced before the date of the housing reconstruction project.".

However, the legislative purport of Article 155 (16) of the former Enforcement Decree of the Income Tax Act is to expand and apply the special case of non-taxation for one household to the association member's relocation right as the right to acquire real estate, in principle, because the original association member's relocation right has the character as a telegraph of the house. Therefore, in light of such legislative purport, the meaning of "where no other house exists as of the date of transfer, it shall be deemed as one house for one household under the provisions of Article 154 (1) 2 (a) of the former Enforcement Decree of the Income Tax Act, notwithstanding the provisions of Article 94 (1) 2 (a) of the former Enforcement Decree of the Income Tax Act, it shall be interpreted that it shall be deemed as one house for one household, as well as one house for one household, in cases where there is no other association member's relocation right as of the date of transfer. However, as seen above, the plaintiff holds another association member's relocation right for the second house as of the date of transfer, and does not meet the requirements of non-taxation for the transfer income tax of one household.

The part of the court below's decision that Article 155 (17) of the Enforcement Decree of the Income Tax Act shall apply to the transfer of the right to move in of this case is erroneous. However, the court below's decision that the disposition of this case is legitimate is just because it is not subject to the special provision on non-taxation of one house for one household in case where one association member's relocation right is possessed with two association member's relocation rights like the plaintiff, and one association member's relocation right is transferred. In so doing, the court below did not err by misapprehending the legal principles on the interpretation of Article 4 of the Addenda of this case, or by violating the principle of non-taxation, as alleged in the ground of

The Supreme Court precedents cited in the ground of appeal by the plaintiff (Supreme Court Decision 2007Du10501 Decided June 12, 2008) are related to the case where the transferor of the association member's relocation right did not own another house except for the house for substitute acquisition at the time of transfer ( therefore, it is subject to temporary 2 houses non-taxation) and the case is different from this case.

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Jeon Soo-ahn (Presiding Justice)