과세당국의 주택재개발,재건축사업 청산금 귀속시기결정에 대한 비판적 고찰

Abstract

Under the Urban and Residential Environment Improvement Law, a housing

reconstruction and redevelopment association must be organized and the members

of the association must transfer their lands to the association. And then in

exchange for the land transferred, upon the completion of the projects, they

receive new residential unit(s). If there is difference between the price of the

lands transferred(A) and that of the new residential units(B) received, the

association collects cash from its members (in case where A is lesser than B),

or refunds cash to them (in case where A is greater than B). Also the cash may

be paid or collected in advance before the completion of the projects. When the

refundable amount of cash is paid in installments in advance, the Korean tax

authorities have imposed capital gains tax on the whole refundable cash at

certain time prior to the full payment, provided some conditions prescribed in

the tax laws are met. However, this tax practice of the Korean tax authorities is

not based on the legitimate interpretation of the tax laws.

First of all, according to the Korean Income Tax Law, taxable capital gains

income shall be derived from (i) the transfer of land or buildings; (ii) the

transfer of rights related to real estate; (iii) transfer of shares in a company

listed on the Korean Stock Exchange or the Korean Securities Dealers Automated

Quotation (KOSDAQ) sold by large shareholders and sold not via securities

markets; and (iv) transfer of shares in a company not listed on the Korean Stock

Exchange or the KOSDAQ. However, whether the refundable cash amount is

within the list above is not clear.

Next, even though it is admissible that the refundable amount is taxable

income, which is the tax authorities position, the amount must not be taxed in...