Article 15 (1) of the Enforcement Decree of the Income Tax Act provides that "one house for one household" shall be deemed to have been owned by one household and its spouse together with the family members living together with them at the same address or same place of residence for three or more years: Provided, That where it falls under any of the following subparagraphs, it shall not be subject to the restriction on the period of residence; "where the period of possession is five or more years, under the conditions as prescribed by the Ordinance of the Ministry of Finance and Economy, it shall be proved that the resident is one house for one household under the conditions as prescribed by the Ordinance of the Ministry of Finance and Economy; Article 6 (3) of the Enforcement Rule of the Income Tax Act provides that "it shall be proved that the first house for one household under the provisions of Article 15 (1) 2 (i) of the Enforcement Decree of the Income Tax Act shall be proved to have been owned by the transferor for five or more years by a certified copy of the register or a certified copy of the house ledger, and it shall not be deemed that the transferor has a house for five or more years, even if he had resided in the above part of the house for five or more years old house:

Therefore, the plaintiff owned the apartment of this case in his own name for five or more years after it was acquired in trust with the non-party's birth, and transferred it to the court below and presented evidence that it should be exempted from capital gains from the transfer of the above apartment. Thus, the court below should have judged whether or not the plaintiff held the above apartment for five or more years as alleged by the plaintiff, after examining whether or not he had held the above apartment for five or more years. However, without making any decision on the above alleged facts, the court below did not err in the misapprehension of legal principles as to the above facts, since the plaintiff did not have resided in the above apartment of Article 15 (1) 2 of the Enforcement Decree and Article 6 (3) 1 of the above Enforcement Rule, and the plaintiff did not have resided in the above apartment of this case, and transferred it on December 29, 1989 after completing the registration of ownership transfer in the name of the non-party, and it did not have any errors in the misapprehension of legal principles as to the plaintiff's land register as provided in Article 6 (4) of the above Enforcement Rule.

Therefore, 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 Yoon Young-young (Presiding Justice)