주택재개발 · 재건축사업 관련 과세제도 개선에 관한 연구

Abstract

「도시 및 주거환경정비법」 시행으로 주택정비사업조합은 법인으로 등기하고 조세특례제한법에서는 비영리법인으로 보고 법인세법을 적용하게 된 바, 조합을 별도의 실체로 규정되어 조합과 조합원사이 재산권 이전 등 발생하는 경우 법인세와 배당소득세의 이중과세와 함께 배당소득세와 양도소득세간 중복과세의 문제가 초래하게 되었다.

첫째, 주택정비사업의 본질은 조합원의 쾌적한 내집 짓기의 일환으로서 조합은 조합원들이 각인별로 주택신축의 전체 관리를 하는 하나의 도관적 성격의 단체이다. 또 정비사업조합은 조합원들의 공동사업과 동일하기 때문에 조합에 대한 법인세 대신 조합원들이 재개발ㆍ재건축주택을 양도할 때까지 과세이연하여 조합원에게 과세하는 것이 합리적이라고 사료된다. 둘째, 주택정비사업조합의 과세소득에 대해 조합원에게 과세하되 (1) 개발이익 발생단계에서 과세하는 방법으로 ① 주택정비사업조합에 「조세특례제한법 제 10절의 3」 동업기업에 대한 조세특례제도를 도입하여 과세하는 방법 ② 수익사업에 대해 과세하되 주택정비사업조합의 비수익 사업에서 수익 사업에서 자산을 지출시 지출 시점에서 조합원에게 과세하는 방법이 있다. 또 다른 방법은 (2) 개발이익 발생단계에서 주택정비사업조합의 과세소득을 과세이연하여 조합원이 재개발ㆍ재건축 주택을 양도할 때 과세하는 방법으로 ① 수익 사업인 일반분양수입금액을 자본으로 계상하는 것으로서 일본의 참가 조합원 제도를 도입하는 방법 ② 수익 사업에서 발생한 소득금액을 고유목적사업준비금의 손금 산입을 허용하는 방법으로 과세이연하는 방법이 있다. 이와 같은 네 가지 과세방법을 통해 주택정비사업의 조합의 과세소득의 법인세와 배당소득세의 이중과세 문제를 현행제도인 법인세법상 수입배당금액의 입금불산입 제도와 소득세법상 배당세액공제제도보다 완전하고도 근본적으로 해결하고자 하는 것이 그 취지이다. 셋째, 주택정비사업조합의 과세소득에 법인단계에서 법인세를 과세하고 조합원단계에서 배당소득세를 과세하여 이중과세문제와 별개로 조합원이 재개발ㆍ재건축 주택을 양도하여 양도차익에 이미 과세된 배당소득금액이 포함되어 중복과세가 되어 조세로 인한 경제적 왜곡이 초래되고 있다. 조합원에 대한 중복과세의 완전한 조정은 이미 과세된 배당소득금액을 투자성격 또는 추가부담금으로 보아 필요경비에 산입하여야 배당소득세와 양도소득세의 중복과세가 제거된다고 판단된다. 넷째, 주택정비사업조합은 법인설립 이후 관리처분계획 작성시 개발이익을 추정하여 주택정비사업의 수익성을 분석하는데 개발이익 및 수익성이 많으면 많을수록 권리가액이 높아져서 조합원은 기존주택보다 더 넓고 쾌적한 신축주택을 자금수지면에서 추가 부담없이 취득하게 된다. 조합원의 권리가액이 산정되고 관리처분계획인가를 받은 후에 주택정비사업조합이 주택정비사업시행기간 중에 발생하는 이익은 법인의 손익을 구성하므로 과세소득이 된다. 주택정비사업기간중 당초 관리처분계획에 의한 개발이익보다 증가 또는 감소하는 경우는 당초 수익성 추정을 잘못 예측한 결과로 기인하였기 때문에 권리가액의 증가 또는 감소로 하여 과세방법을 개선함이 타당하다고 판단된다.|As「Built Environment Renewal Development Act」as enforced, housing development project association was registered as a corporate body and considered as nonprofit organization from Restriction of Special Taxation Act, which adopted corporate tax act for the association, as the result the association was regulated actual organization so that there are double taxations between corporate taxation and dividend income taxation when property transfer occurs with association and association's people, and also there are another double taxation between dividend income taxation and transfer income taxation. First, essence of Built Environment Renewal Development project is a way to built comfortable own houses for members of an association, so that the association has a kind of ductwork functions for managing whole process of new housings in everyone. Also, the association of Built Environment Renewal Development project is the same with cooperating projects of members of the association so that this study contemplates that it is not rational to charge corporation taxation into the association but it is reasonable to charge the taxation into members of the association after suspending the taxations until the reconstruction and renewal developed apartment is done. Second, even if the members should have been charged of the income taxation of housing development project association, (1) with a method to taxation in developmental benefit stage, ①housing development project association should charge taxation by introducing special taxation of partnership corporation at Reduction of Special Taxation Act Article 10 of 3, and ②although profitable projects should be charged from taxation, when the association expends their own property at profitable project for nonprofit projects, there is a way to charge members the taxation at the expenditure point. On the other way, (2) in the stage of development benefit stage, taxable income of housing development project association is postponed so that taxation will happen when the members transfer their reconstructed or renewal developed housings. ①t puts profitable project that income of general land sales in the capital so that it is a method to introduce Japan's members participating institution, and ②in profitable projects, amount of income should be suspended from taxation, permitted to be inclusion in deductible expense of reserve fund for essential business. Through the four taxation methods, this study has a purpose that the double taxation problem with corporation taxation of taxable income and dividend income tax must be settled more completely and fundamentally than current institutions, called non-inclusion of deposit of dividend income and deduction from the income tax on dividend in corporation taxation act. Third, economical distortion has occurred because members charge double taxation as they take responsibility of transfer benefit including dividend income when they yield reconstruction and renewal housings, by charging corporation taxation in a corporation stage of taxable income of a housing development project association, and by charging dividend income tax in members of association stage. Flawless control about the double taxation for members in the association should be deprived when already taxed dividend income is considered as investment or levy and included into necessary expense, after all do then this study judges the double taxation with dividend income taxation and transfer taxation could be removed. Fourth, when they make management disposal plans after founding corporation, housing development project association estimates developmental income amount, and then the more there are developmental income and profitability the higher price of right is, so that members of the association could acquire a lager and more comfortable new house without levy from an aspect of fund receipts and disbursement. After calculating price of right of members of the association and permitting management disposal plan, benefit during period of Built Environment Renewal Development projects of the housing development project association should be taxable income, because the income composes profit and loss of the corporation. When expected developmental profit from management disposal plans is increasing or decreasing for the period of Built Environment Renewal Development project, it comes from wrong calculation of initial benefit so that this study deliberates it is rational that taxation methods is revised as increasing and decreasing of price of right.; As「Built Environment Renewal Development Act」as enforced, housing development project association was registered as a corporate body and considered as nonprofit organization from Restriction of Special Taxation Act, which adopted corporate tax act for the association, as the result the association was regulated actual organization so that there are double taxations between corporate taxation and dividend income taxation when property transfer occurs with association and association's people, and also there are another double taxation between dividend income taxation and transfer income taxation. First, essence of Built Environment Renewal Development project is a way to built comfortable own houses for members of an association, so that the association has a kind of ductwork functions for managing whole process of new housings in everyone. Also, the association of Built Environment Renewal Development project is the same with cooperating projects of members of the association so that this study contemplates that it is not rational to charge corporation taxation into the association but it is reasonable to charge the taxation into members of the association after suspending the taxations until the reconstruction and renewal developed apartment is done. Second, even if the members should have been charged of the income taxation of housing development project association, (1) with a method to taxation in developmental benefit stage, ①housing development project association should charge taxation by introducing special taxation of partnership corporation at Reduction of Special Taxation Act Article 10 of 3, and ②although profitable projects should be charged from taxation, when the association expends their own property at profitable project for nonprofit projects, there is a way to charge members the taxation at the expenditure point. On the other way, (2) in the stage of development benefit stage, taxable income of housing development project association is postponed so that taxation will happen when the members transfer their reconstructed or renewal developed housings. ①t puts profitable project that income of general land sales in the capital so that it is a method to introduce Japan's members participating institution, and ②in profitable projects, amount of income should be suspended from taxation, permitted to be inclusion in deductible expense of reserve fund for essential business. Through the four taxation methods, this study has a purpose that the double taxation problem with corporation taxation of taxable income and dividend income tax must be settled more completely and fundamentally than current institutions, called non-inclusion of deposit of dividend income and deduction from the income tax on dividend in corporation taxation act. Third, economical distortion has occurred because members charge double taxation as they take responsibility of transfer benefit including dividend income when they yield reconstruction and renewal housings, by charging corporation taxation in a corporation stage of taxable income of a housing development project association, and by charging dividend income tax in members of association stage. Flawless control about the double taxation for members in the association should be deprived when already taxed dividend income is considered as investment or levy and included into necessary expense, after all do then this study judges the double taxation with dividend income taxation and transfer taxation could be removed. Fourth, when they make management disposal plans after founding corporation, housing development project association estimates developmental income amount, and then the more there are developmental income and profitability the higher price of right is, so that members of the association could acquire a lager and more comfortable new house without levy from an aspect of fund receipts and disbursement. After calculating price of right of members of the association and permitting management disposal plan, benefit during period of Built Environment Renewal Development projects of the housing development project association should be taxable income, because the income composes profit and loss of the corporation. When expected developmental profit from management disposal plans is increasing or decreasing for the period of Built Environment Renewal Development project, it comes from wrong calculation of initial benefit so that this study deliberates it is rational that taxation methods is revised as increasing and decreasing of price of right.