According to the reasoning of the judgment below, while the plaintiff acquired and resided in the previous house which is an apartment on September 19, 198, he purchased the new house of this case, which is an apartment on September 27, 1991, transferred the previous house to the non-party on February 28, 1992, and had been engaged in overseas work since March 19, 191. Thus, the court below found that the plaintiff acquired the new house of this case to be located in the new house of this case on June 29, 193, since it is obvious that the plaintiff acquired the new house of this case was due to the purpose of moving the house, and since the plaintiff transferred the previous house within 6 months from the date of acquiring the new house, the income from the transfer of the previous house of this case was generated by the transfer of the house of 1 household under Article 5 subparagraph 6 (i) of the Income Tax Act, Article 15 (1) of the Enforcement Decree of the same Act, and Article 6 (1) of the Enforcement Rule of the same Act, and thus, the defendant was not subject to taxation of this case.

According to subparagraph 6 (i) of Article 5 of the Income Tax Act, one house for one household as prescribed by the Presidential Decree and the income tax shall not be imposed on the income accruing from the transfer of a certain area of land attached thereto. According to the main sentence of Article 15 (1) of the Enforcement Decree of the same Act, one house for one household comprised of a resident and his/her spouse together with his/her family members living together with him/her at the same address or same place of residence shall be deemed to have resided in the Republic of Korea for three or more years unless there are special circumstances. According to Article 6 (1) of the Enforcement Decree of the same Act, where a household having one house in Korea has acquired another house for the purpose of moving the house within one year (six months in the case of apartment houses) from the date of acquiring the previous house, and repeatedly acquires the house within one year (nine months in the case of apartment houses) from the date of selling the house for the purpose of transferring the previous house, the income tax shall not be imposed on the previous house for the purpose of transferring it within 9 (2) 19.3) another person who has acquired the house within the same period of 19.

Therefore, the plaintiff owned the previous house in this case and resided together with his spouse, etc. for 3 years or longer due to unavoidable reasons as stipulated in Article 15 (1) 3 of the Enforcement Decree of the same Act, but the plaintiff did not dispose of the new house within 6 months after the acquisition of it, thereby satisfying the requirements of the above (2) and (3). However, since the transfer of the previous house in this case did not meet the requirements of the above (1) because the transfer of the previous house in this case was not possible within the same period, the court below held that the transfer of the previous house in this case cannot be viewed as non-taxation. Thus, the court below erred in the misapprehension of legal principles as to the scope of non-taxation of capital gains tax as one house for one household under the Income Tax Act, and such illegality affected the judgment. Therefore, the ground for appeal pointing this out is justified.

Therefore, without further proceeding to decide on the remaining grounds of appeal, the judgment below is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices

Justices Kim Jong-soo (Presiding Justice)