[양도소득세부과처분취소][공1983.10.15.(714),1428]
(a) Scope of one house for one household exempted from the transfer income tax;
(b) Whether the actual transaction price is unclear or not in calculating the amount of transfer income, if it is impossible to ascertain it;
(a) If a resident who owns one house resides in the house for not less than six months, or leaves the house to enter school, receive medical treatment for diseases, or under any circumstances of business during his/her residence, capital gains tax shall not be imposed on the income accruing from the transfer of the house;
(b) In calculating the amount of capital gains for the imposition of capital gains tax, the transfer value and acquisition value shall be based on the actual transaction value, if the actual transaction value is unclear, or if it is impossible to identify the actual transaction value due to the failure to make a preliminary return on marginal profits from the transfer of assets or a final return on tax base, such transfer value and acquisition value shall be sufficient if assessed based on the standard market price, and further
A. Article 5 of the former Income Tax Act (amended by Act No. 3168 of Aug. 14, 1979), Article 15 of the former Enforcement Decree of the Income Tax Act, Article 6 of the former Enforcement Rule of the Income Tax Act, Article 23 of the former Income Tax Act (amended by Act No. 3168 of Aug. 14, 1979), Article 170 of the former Enforcement Decree of the
Supreme Court Decision 80Nu95 Decided July 8, 1980
Plaintiff
The director of the tax office
Gwangju High Court Decision 82Gu73 delivered on November 4, 1982
The appeal is dismissed.
The costs of appeal shall be borne by the plaintiff.
The grounds of appeal are examined.
Article 5 subparag. 6 (i) of the Income Tax Act (amended by Act No. 3168 of Aug. 14, 1979) provides that one house for one household as prescribed by the Presidential Decree (excluding high-class houses as prescribed by the Presidential Decree) and the land attached thereto shall not be subject to capital gains tax on the transfer of not more than ten times the area on which the building is fixed. Article 15 (1) of the Enforcement Decree of the same Act provides that one house for one household shall be owned by one household and its spouse together with their family members living at the same address or same place of residence for not less than 6 months, on the ground that the transfer income tax cannot be assessed as 97 of the Act on the Acquisition of Real Estate under Article 97 of the same Act. This provision provides that the transfer income tax shall be assessed as 90 if the real estate is newly constructed and its actual market value cannot be assessed as 6 months or more, and that the above provision of Article 6 (3) of the Enforcement Decree of the same Act provides that the transfer income tax shall not be assessed as 9 months or more.
Therefore, the appeal is dismissed, and the costs of the appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.
Justices Lee Chang-chul (Presiding Justice)