과세당국의 주택재개발,재건축사업 청산금 귀속시기결정에 대한 비판적 고찰
A Study on the Taxable Year of the Capital Gains Tax in the Housing Redevelopment and Reconstruction Projects

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서울대학교 법학연구소
법학, Vol.50 No1 pp.265-286
재건축 재개발장기할부양도청산금분할수령housing reconstruction and redevelopment associationhousing redevelopment and reconstruction projectsinstallment sales양도시기환지처분capital gains
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...
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College of Law/Law School (법과대학/대학원)The Law Research Institute (법학연구소) 법학법학 Volume 50, Number 1/4 (2009)
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