[양도소득세부과처분취소][공2005.6.1.(227),863]
[1] Criteria for determining whether a building constitutes "house" under Article 89 subparagraph 3 of the former Income Tax Act
[2] The case affirming the judgment of the court below which held that an apartment used as a family childcare facility for play constitutes "house" under Article 89 (3) of the former Income Tax Act
[1] In a case where a person who transfers a house owns another building, whether the other building constitutes a house under Article 89 subparag. 3 of the former Income Tax Act (amended by Act No. 6781 of Dec. 18, 2002) and Article 154(1) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 17456 of Dec. 31, 2001) shall be determined by whether the building actually used for a house regardless of the usage classification of the official injury. Even if the building is temporarily used for a non-residential purpose, its structure, function, or facility is in a state suitable for a residence as its original residential purpose, and its residential function is maintained and managed as it is, and therefore, it shall be deemed a house if it is a building for which the principal or a third party can use as a house at any time.
[2] The case affirming the judgment of the court below that apartment used as a home nurtureive facility constitutes "house" under Article 89 subparagraph 3 of the former Income Tax Act (amended by Act No. 6781 of Dec. 18, 2002)
[1] Article 89 subparagraph 3 of the former Income Tax Act (amended by Act No. 6781 of Dec. 18, 2002), Article 154 (1) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 17456 of Dec. 31, 2001) / [2] Article 89 subparagraph 3 of the former Income Tax Act (amended by Act No. 6781 of Dec. 18, 2002), Article 154 (1) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 17456 of Dec. 31, 2001), Article 6 subparagraph 4 of the former Infant Care Act (amended by Act No. 7153 of Jan. 29, 2004) (see current Article 10 subparagraph 4 of the Building Act), Article 2 (2) of the Building Act, Article 3-4 of the Enforcement Decree of the Building Act [Attachment 1]
[1] Supreme Court Decision 81Nu322 delivered on November 22, 1983 (Gong1984, 111), Supreme Court Decision 84Nu255 delivered on October 10, 1984 (Gong1984, 1806), Supreme Court Decision 85Nu790 delivered on March 25, 1986 (Gong1986, 718), Supreme Court Decision 87Nu584 delivered on September 8, 1987 (Gong1987, 1594), Supreme Court Decision 91Nu10367 delivered on August 18, 192 (Gong192, 2783)
[Judgment of the court below]
The Director of the Pacific District Office
Seoul High Court Decision 2004Nu4835 delivered on December 10, 2004
The appeal is dismissed. The costs of appeal are assessed against the plaintiff.
In a case where a transferor of a house owns another building, whether the other building constitutes "house" under Article 89 subparagraph 3 of the former Income Tax Act (amended by Act No. 6781 of Dec. 18, 2002) and Article 154 (1) of the Enforcement Decree of the same Act shall be determined by whether the building actually used for a residence regardless of the usage classification of the official injury in the building (see Supreme Court Decision 87Nu584, Sept. 8, 1987, etc.) is used for a non-residential purpose; even if the building is temporarily used for a non-residential purpose, its structure, function, or facility is in a state suitable for a residence as its original residential purpose, and the residential function is maintained and managed as it is, so it shall be deemed a house in the case of a building where the principal or a third party is able to use as a house at any time.
According to these legal principles and records, the court below held that the third apartment of this case was used as an exclusive facility for play, which is a home nurtureive facility after the non-party 1, who is the plaintiff's wife, and was not used for residence. However, according to the related Acts and subordinate statutes, the apartment of this case, a home nurtureive facility, which is established and operated by an individual at home or in a similar place, is classified into a house which is not a neighborhood living facility or a welfare facility under the Building Act. The structure, function, or facility of the third apartment of this case, has a form suitable for an independent house, and at any time, it is possible for the non-party 1 to use it as a residential building without changing its use or structure, and it is anticipated that the apartment of this case falls under a house as prescribed by the former Income Tax Act, and there is no error in the misunderstanding of facts due to violation of the rules of evidence or misunderstanding of legal principles as to the requirements for non-taxation for one household.
The Supreme Court precedents cited in the grounds of appeal are different cases and thus are inappropriate to be invoked in this case.
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 Yoon Jae-sik (Presiding Justice)