[양도소득세부과처분취소][공1985.6.15.(754),804]
Whether a taxpayer is exempt from capital gains tax under Article 15(1) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 10120, Dec. 31, 1980) and Article 6(3) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 1470, Feb. 7, 1981) of the same Act (amended by Presidential Decree No. 1470, Feb. 7, 1981).
According to Article 15(1) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 10120 of Dec. 31, 1980) and Article 6(3) of the Enforcement Rule of the same Act (amended by Ordinance of the Ministry of Finance and Economy No. 1470 of Feb. 7, 1981), the term “one house for one household” shall mean that one household of a resident owns one house in Korea and resides for not less than 6 months in Korea, but it shall not be subject to the restriction of the period of residence if there are inevitable reasons prescribed by the Ordinance of the Ministry of Finance and Economy. The term “inevitable reason” refers to a case where all members of a household have not resided in his domicile or residence in another Si, Eup, or Myeon due to school attendance, medical treatment, situations of work, or business, so transfer of a house which a taxpayer has not resided in Korea for not less than 6 months by residing in another country is not subject to the non-taxation of the capital gains tax as prescribed by the above Act.
Article 15 (1) of the Enforcement Decree of the Income Tax Act, Article 6 (3) of the Enforcement Rule of the former Income Tax Act
Plaintiff
Head of Yongsan Tax Office
Seoul High Court Decision 83Gu1038 delivered on September 25, 1984
The appeal is dismissed.
The costs of appeal are assessed against the plaintiff.
We examine the Plaintiff’s ground of appeal.
According to the reasoning of the judgment of the court below, the court below recognized that the plaintiff acquired the house of this case on December 23, 1974 and did not immediately move it with his family members, and resided in Yongsan-gu Seoul ( Address 1 omitted) which is the present domicile until May 12, 1979, only the plaintiff mixed with the plaintiff, who moved into the Gyeonggi-do ( Address 2 omitted) 13th of the same month, again on October 26th of the same year that he did not move it to the non-party on December 27th of the same year without six months from the time when he moved into the house of this case. Thus, the court below's findings of the court below are just and acceptable, and it did not err in the misapprehension of the legal principles as to the transfer income tax or the transfer income tax under Article 15 (1) of the Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 10120 of Dec. 31, 1980) and Article 6 (3) of the same Act (amended by Ordinance of the Ministry of Finance and Economy No.16 months prior to 70).
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.
Justices Kim Young-ju (Presiding Justice)