[양도소득세부과처분취소][집31(4)특,33;공1983.9.15.(712),1274]
Whether capital gains from a house in which one household has resided for at least six months without transferring resident registration is non-taxable income (affirmative)
Article 15 (7) of the Enforcement Decree of the Income Tax Act stipulates that the number of months of residence under paragraph (1) of the same Article shall be calculated based on the number of months from the date of income under the resident registration card to the date of transfer, but this is for the convenience of proof, and the recognition of the fact of residence is not made only by the method. Thus, even though the plaintiff is a resident in this case and is not registered on the resident registration card, if the plaintiff actually resides together with his family for 6 months or more, the income accrued from the transfer of the house shall be non-taxable income under Article 5 (6) (i) of the Income Tax Act and
Article 5 subparagraph 6 (i) of the Income Tax Act, Article 15 (1), and Article 15 (7) of the Enforcement Decree of the Income Tax Act
Supreme Court Decision 81Nu284 Decided June 22, 1982
[Judgment of the court below]
The director of the tax office
Seoul High Court Decision 81Gu300 decided March 17, 1982
The appeal is dismissed.
The costs of appeal are assessed against the defendant.
We examine the grounds of appeal.
According to the facts duly established by the court below, the plaintiff acquired 38.1 land of Dobong-gu Seoul Metropolitan Government ( Address 1 omitted), 15.1 land and 1 house for 15.7 square meters and 38 square meters underground (hereinafter referred to as "original house"), and transferred it to other person around August 20, 1979. The defendant imposed the tax on the income accrued from the transfer of the plaintiff's assets, and it was registered on the resident registration card of Jung-gu (No. 2 omitted) house (hereinafter referred to as "Jakdong house") which had been located in the same residential area from November 18, 1970 to the above 6. The plaintiff was registered on the resident registration card as "No. 1 house" that had been located in the same residential area as "No. 1 house for 6.1 house" and the plaintiff did not own it from the non-party 1 to the non-party 2 and did not own it for the remaining 197.28.197.
The judgment of the court below to the same purport is just, and there is no error in the misapprehension of legal principles, such as the theory of lawsuit. In conclusion, we cannot accept the judgment of the court below from a different point of view.
Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices O Sung-sung(Presiding Justice)