[1] In a case where land is transferred to a construction site of national housing, whether an application for refund under the former Tax Reduction and Exemption Control Act can substitute for the application for exemption filed only at the time of filing a preliminary return

[2] Whether a housing association has the same status as a registered housing constructor under Article 6 (1) of the Housing Construction Promotion Act

[1] In light of the provisions of Article 62(1) of the former Regulation of Tax Reduction and Exemption Act (amended by Act No. 4165 of Dec. 30, 1989) and the provisions of Article 50(3), (9), and (10) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 12881 of Dec. 30, 1989), where land is transferred to a construction site of national housing, the refund and exemption of capital gains tax should be determined depending on whether the transferee is the actual user of the land or not as to whether the transfer income tax is subject to refund. As such, there are differences in legal requirements, the person liable to submit an application, the deadline for filing an application, and the legal effect of the transfer income tax, so only the application for exemption filed at the time of preliminary return on the transfer of the land can not be substituted for

[2] The legislative intent of Article 62 (1) of the former Regulation of Tax Reduction and Exemption Act (amended by Act No. 4165 of Dec. 30, 1989) is to supply a national housing site at a low price. The reason why the State, local governments, the Korea National Housing Corporation, and the Korea Land Development Corporation are exempted from the obligation of registration under Article 6 (1) of the Housing Construction Promotion Act is to acquire the same status as the registered business entity even without registration. The housing association is also exempted from the same obligation of registration, and Article 44 (3) of the Housing Construction Promotion Act considers the housing association as the registered business entity and the joint business entity. Thus, the housing association also has the same status as the registered business entity under Article 6 (1) of the same Act.

[1] Article 62(1) of the former Regulation of Tax Reduction and Exemption Act (amended by Act No. 4165 of Dec. 30, 1989); Article 50(3), (9), and (10) of the former Enforcement Decree of the Regulation of Tax Reduction and Exemption Act (amended by Presidential Decree No. 12881 of Dec. 30, 1989) / [2] Article 62(1) of the former Regulation of Tax Reduction and Exemption Act (amended by Act No. 4165 of Dec. 30, 1989); Article 50(3) of the former Enforcement Decree of the Regulation of Tax Reduction and Exemption Act (amended by Presidential Decree No. 12881 of Dec. 30, 1989); Articles 6(1) and 44(3) of the Housing Construction Promotion Act

[2] Supreme Court Decision 95Nu9419 delivered on November 28, 1995 (Gong1996Sang, 275) Supreme Court Decision 95Nu9426 delivered on November 28, 1995

Plaintiff 1 and one other (Attorney Kim Jong-chul, Counsel for the plaintiff-appellant)

Head of the Do Tax Office

Seoul High Court Decision 93Gu24256 delivered on May 24, 1994

The judgment below is reversed and the case is remanded to Seoul High Court.

We examine the grounds of appeal.

On the first ground for appeal

In light of the provisions of Article 62(1) of the former Regulation of Tax Reduction and Exemption Act (amended by Act No. 4165 of Dec. 30, 1989) and the provisions of Article 50(3), (9), and (10) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 12881 of Dec. 30, 1989), where land is transferred to a construction site of national housing, the court below held that the refund and exemption of capital gains tax can only be substituted for the application for exemption filed at the time of preliminary return of transfer margin on the transfer of the land of this case on the grounds that there are differences in legal requirements, submission of application, application deadline, application deadline, and legal effect of the transfer margin, and there are no errors in the misapprehension of legal principles on the application for refund.

There is no reason to discuss this issue.

On the second ground for appeal

According to the reasoning of the judgment below, the court below rejected the plaintiffs' application for exemption from capital gains tax on May 31, 1989 for the following reasons: (a) on June 27 of the same year, when the plaintiffs transferred the land of this case owned by them to the non-party Japanese Housing Association on May 31, 1989 as a national housing construction site; and (b) on June 27 of the same year, the transfer income tax under the above transfer was excluded from being refunded after completion of national housing under Article 62 (1) of the Regulation of Tax Reduction and Exemption Act; and (c) the above housing association submitted an application for exemption from capital gains tax while paying only defense tax; (d) newly constructed national housing on the land of this case on August 12, 191, and moved into the association members with the provisional approval approval obtained from the competent authority on August 12, 1991; (e) the defendant failed to take any measures on the above exemption from capital gains tax for three years and six months after the scheduled return of the above transfer income tax; (e.

However, in this case, it is obvious that the plaintiffs can receive a refund of capital gains tax from the transfer of the land in this case, regardless of the transferor's preliminary return or final return on gains from the transfer of assets, the transfer income tax is determined only when the government determines the tax base and tax amount pursuant to Article 22 (1) of the Framework Act on National Taxes, subparagraph 3 of Article 10-2 of the Enforcement Decree of the same Act, regardless of the transferor's preliminary return or final return on gains from the transfer of assets, and the refund is the concept premised on the imposition and payment of taxes, Article 62 (1) of the same Act, Article 62 (2) of the same Enforcement Decree of the same Act, and Article 62 (2) and (9) of the above Enforcement Decree of the same Act, which stipulate the right to apply for refund, are to be imposed at least on the tax authority at least three years and six months from the scheduled date of the above transfer gains tax return, and thus, the decision of the court below that the disposition of this case was unlawful.

However, prior to rendering a judgment on the Plaintiff’s grounds of appeal, the Plaintiff’s application for exemption of this case was erroneous ex officio, and therefore, we examine whether the Defendant’s application for exemption of this case was legitimate for examining the application for exemption of this case and taking the instant disposition on the grounds as

The purpose of Article 62 (1) of the Regulation of Tax Reduction and Exemption Act is to supply a national housing site at a low price, and the State, local governments, the Korea National Housing Corporation, the Korea Land Development Corporation, etc. is to exempt the obligation to register under Article 6 (1) of the Housing Construction Promotion Act from the obligation to register is to acquire the same status as the registered business operator even without registration. The housing association is also exempted from the same obligation to register, and Article 44 (3) of the Housing Construction Promotion Act is to report the housing association to the registered business operator and the joint business operator, so the housing association also has the same status as the registered business operator under Article 6 (1)

Therefore, the non-party association, a housing association of which the defendant tax office is the housing association, is not a housing construction business operator registered pursuant to Article 6 of the Housing Construction Promotion Act, and thus, the transfer income accrued from the transfer of the land to the non-party association is not subject to exemption of transfer income tax, etc. as mentioned above, it cannot be deemed an illegal disposition of imposition of transfer income tax by implied application of the plaintiff

Therefore, the judgment of the court below which rejected the plaintiff's claim seeking the revocation of the disposition of this case is erroneous in the misapprehension of legal principles as to the reduction and exemption under the Regulation of Tax Reduction and Exemption Act, which affected the conclusion of the judgment. Thus, without examining the remaining grounds of appeal by the plaintiff, the judgment of the court below shall not be reversed.

Therefore, the judgment of the court below against the plaintiff shall be reversed and remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Jong-soo (Presiding Justice)