A subdivision right held from the sale contract date, not the draw date

1. 01Question

   In counting whether a one-generation household holds three or more houses and subdivision or membership rights under Article 104(7)(iv) of the former Income Tax Act, is a subdivision right held from the subscription draw date or from the sale contract date?

2. 02Holding

   From the sale contract date. Article 88(x) of the former Income Tax Act defines a subdivision right as the status of being selected to receive a house through a supply contract, and a subscription draw only gives the winner a position to conclude that contract, so the right is not definitively acquired before the contract is made. Article 28-4(1) of the former Enforcement Decree of the Local Tax Act, which counts a housing subdivision right acquired from the developer as acquired on the sale contract date, may likewise be applied to the reading of Article 104(7)(iv), which has no express provision, and the NTS Basic Rule is an internal administrative rule that cannot itself ground a tax measure.

   Summary of the holding, verbatim

   구 소득세법 제104조 제7항 제4호의 ‘1세대가 보유한 주택 등 수의 합이 3 이상인 경우’에 해당하는지를 판단할 때, 분양권은 청약당첨일부터가 아니라 분양계약일부터 이를 보유한 것으로 보아야 한다.

   Unofficial English translation

   When judging whether a case falls under the 'case where the sum of the number of houses, etc. held by one household is three or more' in former Article 104(7)4 of the Income Tax Act, a housing supply right must be regarded as held from the date of the housing supply contract rather than from the date the subscription was awarded.

3. 03Disposition

   Dismissed Stated in the decision

   상고를 기각한다. 상고비용은 피고가 부담한다.

   Unofficial English translation

   The appeal is dismissed. The defendant shall bear the costs of the final appeal.

4. 04Form of the test

   Elements stated Stated in the decision

   구 소득세법 제104조 제7항 제4호의 ‘1세대가 보유한 주택 등 수의 합이 3 이상인 경우’에 해당하는지를 판단할 때, 분양권은 청약당첨일부터가 아니라 분양계약일부터 이를 보유한 것으로 보아야 한다.

   Unofficial English translation

   When judging whether a case falls under the 'case where the sum of the number of houses, etc. held by one household is three or more' in former Article 104(7)4 of the Income Tax Act, a housing supply right must be regarded as held from the date of the housing supply contract rather than from the date the subscription was awarded.

5. 05Factors

   • 구 소득세법 제88조 제10호는 분양권이란 주택법 등 대통령령으로 정하는 법률에 따른 주택에 대한 ‘공급계약’을 통하여 주택을 공급받는 자로 선정된 지위라고 규정하고 있다.
   • 청약 당첨은 당첨자에게 해당 주택에 대한 분양계약을 체결할 수 있는 지위를 부여한 것에 불과할 뿐, 당첨자가 분양계약 체결 전에 해당 주택에 대한 분양권을 확정적으로 취득하였다고 보기 어렵다.
   • 1세대 다주택자에 대한 취득세 중과와 양도소득세 중과는 그 세목과 적용 법령 등에서는 차이가 있으나, 1세대의 주택 수를 기준으로 중과 여부를 결정한다는 것에서는 동일하다.
   • 국세청의 기본통칙은 과세관청 내부에서 세법의 해석기준 및 집행기준을 시달한 행정규칙에 불과하고 법원이나 국민을 기속하는 효력이 있는 법규가 아니므로 기본통칙 그 자체가 과세처분의 적법한 근거가 될 수는 없다.

   Unofficial English translation

   • Former Article 88, subparagraph 10 of the Income Tax Act provides that a housing supply right means the status of a person selected to be supplied with a housing unit through a 'supply contract' under the Housing Act or other Acts prescribed by Presidential Decree.

   • Being awarded in a subscription merely confers upon the winner the status of being able to conclude a housing supply contract for the relevant housing unit, and it is difficult to regard the winner as having definitively acquired the housing supply right for the relevant housing unit before the conclusion of the housing supply contract.

   • The additional imposition of acquisition tax and the additional imposition of capital gains tax on persons of one household owning multiple housing units differ in the respective tax categories and applicable statutes and regulations, but they are the same in that the determination of whether to impose an additional tax is made on the basis of the number of housing units held by one household.

   • The Basic Interpretative Rules of the National Tax Service are merely administrative rules circulated within the tax authority to set out standards for the interpretation and enforcement of tax laws, and are not statutes binding the courts or the people; therefore, the Basic Interpretative Rules themselves cannot serve as a lawful basis for a tax assessment disposition.

6. 06Relation to precedent

   Follows earlier decisions Stated in the decision

   대법원 1992. 12. 22. 선고 92누7580 판결(공1993상, 640), 대법원 2009. 4. 23. 선고 2007두10884 판결

   Unofficial English translation

   Supreme Court Decision 92Nu7580 pronounced December 22, 1992 (Gong 1993 Sang, 640), Supreme Court Decision 2007Du10884 pronounced April 23, 2009

   Decisions referred to

   대법원 1992. 12. 22. 선고 92누7580 판결(공1993상, 640), 대법원 2009. 4. 23. 선고 2007두10884 판결

7. 07Burden of proof

   Not addressed Not in the decision

8. 08Open question and revisit condition

   If a sale contract is rescinded before the transfer date, is the household treated as never having held the subdivision right from the contract date?

   An express provision in Article 104 of the Income Tax Act or in the Enforcement Decree of the Local Tax Act as amended after 31 December 2024 fixing the date on which a subdivision right is counted would replace this reading. A later decision treating the subscription draw date as the date of holding would also require the entry to be read again.

Read 2026-10-24 · Cross-read 2026-10-24. All quotes matched against the official text. The Chinese-character placeholders the court used for anonymised parties are given in their Korean readings, and parenthetical Chinese-character glosses are omitted.

Every entry is published only after all quotes have been matched character by character against the official text, and audited by an independent second reading from a different model family across all eight axes. Both agreed axes and text-grounded interpretive divergences are recorded openly. The ledger is a research record, not an assessment of the court or advice on any matter.