住宅再建築事業 關聯 課稅上 諸 問題 = (A) study of tax issues on the housing reconstruction project

다국어 초록 (Multilingual Abstract)

In case that houses and buildings are old and poor in spite of good infrastructures, it is needed to take away old ones and reconstruct new ones on sites where old ones have been to improve the better housing condition. The Housing Reconstruction Project has been carried out for the reason as above and contributed to a solution on the shortage of houses in the limited city housing area, specially major cities such as Seoul, Busan, Deagu and so on. In processing a lot of Housing Reconstruction Projects, there have been many troubles about the taxation due to ambiguity about an interpretation of the nature of the Housing Reconstruction Association made up of the house owners who hope to build new ones and conflicting interests among the Housing Reconstruction association, a member of the association, a company which takes charge of the construction, a professional supervisor of the housing improvement and a local government.
The Housing Reconstruction Project had been controlled by the Act of Housing Construction Promotion and the taxation authority and the court had had a different point of view about the nature of the Housing Reconstruction Association -whether a taxation authority had to tax to each member of an association or tax to an association itself. Since July 1 2003, however, the enforcement of the Act of Urban and Housing Condition Improvement instead of the Act of Housing Construction Promotion has made discussions clear by forcing the Housing Reconstruction Association to register as the name of a given association and taxing an association itself. In addition, the Housing Reconstruction Association will have been regarded as a nonprofit organization by the Special Tax Treatment Control Law until December 31 2008. Still, another discussion remains, that is, whether the Housing Reconstruction Association is a nonprofit organization or for-profit organization.
The purpose of this study is to contribute to the realization of equal tax burden and efficient drive of the Housing Reconstruction Project by suggesting appropriate solutions and interpretations to problems described as above.
First, a nature of the Housing Reconstruction Association as a taxpayer must be reviewed ahead to study tax system of the Housing Reconstruction Association. The Act of Urban and Housing Condition Improvement enacts that the Housing Reconstruction Association itself has the juridical personality, therefore, the argument about this problem is solved legislatively but
another argument is if the Housing Reconstruction Association can be regarded as a nonprofit organization. The Special Tax Treatment Control Law § 104-7 (2) enacts that the Housing Reconstruction Association will have been a nonprofit organization for taxation until December 31 2008. Yet, it is likely that the Law sees the Association as a nonprofit organization not because it is non-profit in nature but because there is a certain purpose to be realized in the housing policy.
It is reasonable to view the Housing Reconstruction Association as a for-profit organization legally because most of profits from it's business revert to members of the Housing Reconstruction Association in the ratio of investments despite the rule above.
Second, Solutions about the Corporation Tax problem on the Association are as follows.
With regard to the calculation of profits, members' additional expenses should not be included to profits because they are not profits under the Special Tax Treatment Control Law. It is important to decide when profits of the distribution are recognized for determining reverting time of profits and the standard of it is the time when the housing construction is completed.
With regard to the calculation of losses, the acquisition date of sites invested in kind by members should be the date when the operation of the project is approved. It is objective and reasonable that the tax authorities use not only the actual transacting price in principal but also the appraised price by an expert and individual price announced publicly in supplementary.
In addition to suggestions above, the price of an old house taken away should be included the losses because members invest house buildings as well as sites in kind and the investment still remains despite the removal of buildings.
Third, the current Income Tax Law has not imposed the Capital Gain Tax on the house which is distributed to its members in return for the investment in kind by the Association because that house is regarded as the land substitution. However, arguments against the contents of the Law still remain.
It is reasonable that the special deduction should be allowed for members who have possessed an old house for a long time in certain case that the right to move into new house is thought of as a new house, that members be able to claim a right to move into new house-especially relating to the transfer of that right- on the date of the approval of the Disposal Plan, and that the period of possession be counted from on the date of the acquisition of an old house to on the date of the transfer of a new house.
Fourth, There are two suggestions about the Acquisition Tax related to the Housing Reconstruction. First, if the Housing Reconstruction Association acquires construction sites from its member as an investment in kind, it is not proper that the tax authority impose the Acquisition Tax on the sites which the Association acquires for the use of sales not to its members but to a certain customer, considering the intent of the law of the Local Tax Law §105 (10) and a proviso of §110 (ⅰ), and systemic interpretation between two texts. Second, according to the Local Tax Law §105 (10), it is proper for the tax authority to impose the Acquisition Tax and the Registration Tax on members of the Association who acquires a new house. A standard of taxation is the actual acquisition cost that is composed of construction costs and incidental expenses.
Fifth, the Value-added Tax(VAT) has to be taxed to services concerned with the housing construction. The Special Tax Treatment Control Law have not taxed VAT to it because the Law doesn't think the supply of apartment buildings beyond the Nation House Scale-an appropriate house size for people in middle class- as services concerned with the housing construction. However, the supply of apartment buildings beyond the Nation House Scale is an offer of services apparently, so the VAT has to be taxed to it. If there is a special agreement among the Housing Reconstruction association, a member of the association and a company which takes charge of the construction concerning the VAT burden, the VAT will be taxed to one of them according to it. On the other hand, if there is not any agreement among them, it is reasonable that the final consumer, a member of the association pay for the VAT because the final consumer has to pay the VAT principally.

목차 (Table of Contents)

• 제1장 서론 = 1
• 제1절 연구목적 = 1
• 제2절 연구범위 = 2
• 제2장 재건축사업의 구조 개관 = 4
• 제1절 재건축사업의 개념 = 4
• 1. 재건축사업의 정의 = 4
• 2. 유사개념과의 구별 = 4
• 3. 재건축사업에 대한 법적 규율 = 8
• 제2절 재건축사업의 추진절차 = 14
• 1. 사업계획단계 = 14
• 2. 사업시행단계 = 16
• 3. 사업종료단계 = 24
• 제3절 재건축사업의 주요내용 = 26
• 1. 주체 = 26
• 2. 재건축사업의 수행방법 = 27
• 3. 도시정비법상의 ‘조합설립동의’와 집합건물법상 ‘재건축결의’와의 관계 = 29
• 4. 신탁등기 = 31
• 5. 매도청구권 = 32
• 제4절 재건축사업 관련 과세의 기본구조 = 35
• 1. 과세의 기본구조 = 35
• 2. 재건축사업의 기본구조와 이에 따른 조세문제 = 36
• 3. 재건축사업관련 조세의 제 문제점 개관 = 36
• 제3장 납세의무자로서 재건축조합의 조세법적 성격 = 38
• 제1절 개요 = 38
• 제2절 과세단위 = 38
• 1. 문제점 = 38
• 2. 동업자단체(민법상 조합)의 경우 과세단위 = 39
• 3. 미국세법상 파트너십(Partnership)과 Corporation = 41
• 4. 특수목적법인 = 41
• 제3절 재건축조합의 조세법적 성격 = 42
• 1. 2003. 7. 1. 도시정비법 시행전의 논의 = 42
• 2. 2003. 7. 1. 도시정비법 시행후의 논의 = 46
• 제4절 소결 = 55
• 제4장 재건축사업관련 소득과세상의 문제점 = 56
• 제1절 개요 = 56
• 제2절 재건축조합에 대한 소득과세 = 56
• 1. 개설 = 56
• 2. 법인세 개관 = 57
• 3. 재건축조합의 익금 계산 = 58
• 4. 재건축조합의 손금 계산 = 66
• 제3절 재건축조합원에 대한 소득과세 = 74
• 1. 개설 = 74
• 2. 재건축조합원의 현물출자행위에 대한 과세 = 75
• 3. 조합원 입주권 양도관련 양도소득세 과세문제 = 77
• 4.. 재건축조합원의 주택양도 관련 1세대 1주택 비과세적용문제 = 84
• 5. 조합원이 취득한 신축주택의 양도에 대한 양도소득세 = 87
• 제4절 소결 = 89
• 제5장 재건축사업 관련 부동산거래세의 과세상 문제점 = 91
• 제1절 개요 = 91
• 제2절 부동산거래세로서의 취득세와 등록세 = 91
• 1. 취득세 및 등록세 개관 = 91
• 2. 재건축사업과 부동산 거래세 = 95
• 제3절 재건축조합 관련 부동산거래세 과세문제 = 95
• 1. 조합원의 부동산(조합원용 토지 및 건축물 등)의 취득 = 95
• 2. 신축한 조합원용 건물의 취득 = 96
• 3. 일반분양용 건물의 취득 = 96
• 4. 일반분양용 토지의 취득에 대한 취득세 부과여부 = 97
• 제4절 재건축조합원 관련 부동산 거래세 과세문제 = 103
• 1. 토지에 대한 취득세 및 등록세 비과세 = 103
• 2. 신축건물에 대한 취득세 및 등록세 과세 = 104
• 제5절 소결 = 105
• 제6장 재건축사업 관련 소비과세상 문제점 = 106
• 제1절 개요 = 106
• 제2절 간접소비세로서의 부가가치세 = 106
• 1. 부가가치세 개관 = 106
• 2. 재건축사업과 관련한 부가가치세의 과세상 문제점 = 107
• 제3절 조합원에 공급하는 국민주택규모초과 아파트에 대한 부가가치세과세 = 108
• 1. 조합의 조합원에 대한 아파트 공급으로 인한 매출세액 부분 = 108
• 2. 시공사의 조합에 대한 건설용역으로 인한 매입세액부분 = 110
• 제4절 공통매입세액의 안분계산 = 113
• 1. 의의 = 113
• 2. 현행법상 공통매입세액의 안분계산의 기준 = 114
• 3. 해석론 = 116
• 제5절 소결 = 117
• 제7장 결론 = 118
• 참고문헌 = 122
• 판례색인 = 125
• Abstract = 127