The case is remanded to Seoul High Court.

1. On February 24, 1984, the court below acknowledged that the plaintiff married with the non-party 1 and resided together with the above non-party 1 at the time, and that the non-party 1 registered the ownership of the housing of this case in the name of the plaintiff on July 19, 198 as to the non-party 1 was to pay consolation money to the plaintiff on July 20, 198. The above non-party 1 continued to reside in the housing of this case even after the non-party 1 went out of the housing of this case according to divorce, and transferred the housing of this case to the non-party 2 on May 8, 1989. The court below held that the non-party 1, a resident, was to form one household with the above non-party 1, a member of the non-party 1, and later transferred the housing of this case to the non-party 1, a member of the non-party 1, and that the housing of this case was transferred to the other party.

2. Under the Income Tax Act, a resident is obliged to pay the income tax on capital gains (Article 4(1)3) accruing from the transfer of assets (Article 1(1)). Since a transfer of assets means that an asset is actually transferred at a cost (Article 4(3)). If an asset is actually transferred at a cost on several occasions, it is in principle that income tax is imposed on the income accruing from such transfer whenever it is transferred at a cost. Accordingly, whether such transfer income falls under the income arising from the transfer of the so-called “one house for one household”, which is the non-taxable income under Article 5 subparag. 6(i) of the Income Tax Act and Article 15(1) of the Enforcement Decree of the Income Tax Act, cannot be determined individually whenever the asset is transferred.

As in the case of this case, the husband's transfer of the ownership of the house owned by his husband to pay consolation money to his wife is nothing more than the economic benefits that are extinguished in return for the transfer of the house (see Supreme Court Decision 88Nu10183, Jun. 27, 1989). Thus, as long as it cannot be seen that the transfer of the house constitutes a commercial transfer subject to capital gains tax (see Supreme Court Decision 88Nu10183, Jun. 27, 1989). The above non-party 1 transferred the house of this case to the plaintiff regardless of the above non-party 1, and the plaintiff transferred the house of this case to the above non-party 2 regardless of the above non-party 1. Therefore, whether the plaintiff's income accrued from the transfer of the house of this case to the above non-party 2 falls under the transfer of the house of this case "one house for one household" regardless of the above non-party 1, and it is clear that the plaintiff transferred the house of this case to the non-party 1.

Nevertheless, the court below determined that the Plaintiff’s income derived from the transfer of the instant house constitutes income arising from the transfer of so-called “one house for one household.” Thus, the court below did not err by misapprehending the legal principles on “one house for one household” which is not subject to income tax, and it is clear that such illegality has affected the conclusion of the judgment. Thus, there is a reason to point this out.

3. Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Yoon-young (Presiding Justice)