According to the reasoning of the judgment below, the court below rejected the plaintiff's assertion that the transfer of the apartment of this case constitutes a transfer of one house by one household because the transfer of the apartment of this case constitutes a non-taxable income as it falls under Article 15 (1) 3 of the Enforcement Decree of the Income Tax Act and Article 6 (4) 1 of the Enforcement Decree of the Income Tax Act because the plaintiff could not reside in the apartment of this case by leaving Daegu Daegu for medical treatment or working conditions of the disease, and therefore, the transfer of the apartment of this case constitutes a non-taxable income. The court below rejected the plaintiff's assertion that the transfer of the apartment of this case should not be levied on the transfer of the house of this case, although all the transferor's household have not resided in the apartment of this case even though the period of residence of this case has not been three years since they had been residing in the house of this case, in order to become a non-taxable income, the transfer of the apartment of this case should not be levied on the transfer of the house of this case.

However, Article 15 (1) 3 of the Enforcement Decree of the Income Tax Act provides that "a case where there is an inevitable reason prescribed by the Ordinance of the Ministry of Finance and Economy" shall be one of the cases where one household constitutes one house for one household without being subject to the restriction of the residence period stipulated in the main sentence of Article 15 (1) 3 of the Enforcement Decree of the Income Tax Act. Accordingly, Article 6 (4) 1 of the Enforcement Rule of the Income Tax Act provides that where all members of the household move out to another Si/Eup/Myeon due to school attendance, medical treatment for diseases, situations of work or business, and prevent them from living at the domicile or temporary domicile for three years or more, it shall be one of the inevitable reasons under Article 15 (1) 3 of the Enforcement Decree of the Income Tax Act. In such an unavoidable reason, the issue of whether the transferor of the house has resided in the house shall not be asked, and it shall be interpreted that the transfer of income tax shall not be imposed on the income accruing from the transfer of the house (see Supreme Court en banc Decision 92Nu29888 delivered on January 19,

Nevertheless, the court below rejected the plaintiff's assertion on the ground that the plaintiff did not actually reside in the apartment of this case without examining and determining whether the plaintiff's failure to reside in the apartment of this case due to unavoidable reasons under Article 6 (4) 1 of the Enforcement Rule of the Income Tax Act, and on the ground that the plaintiff did not actually reside in the apartment of this case, the court below erred in interpreting Article 15 (1) 3 of the Enforcement Decree of the Income Tax Act and Article 6 (4) 1 of the Enforcement Rule of the Income Tax Act, and it is clear that such illegality affected the conclusion of the judgment. Thus,

Therefore, without examining 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 Song Man-man (Presiding Justice)