과세당국의 주택재개발·재건축사업 청산금 귀속시기결정에 대한 비판적 고찰

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 installment sales because that refundable amount does not satisfy the installment sales defined in the relevant tax laws, and moreover the taxable period has not arrived yet. Under the Income Tax Law, to be taxed in installment method, the following conditions must be satisfied: (i) more than one year period of payment; (ii) at least two installments; and (iii) before full payment, a buyer must acquire legal title of or control over or use exclusively the object. In this case, however, refundable cash amount does not meet the definition of the installment method defined above. Furthermore, whether which provision is relevant in §162 ③ or ① of the Presidential Decree of the Income Tax Law is at issue. When the all relevant tax laws are considered together, the application of the provision of §162 ③ is more reasonable, which means that there is no ground for taxation on the entire refundable amount in installment method.