[양도소득세등부과처분취소][공1997.1.1.(25),127]
The case holding that it does not correspond to "one house for one household which is exempted from capital gains tax" in case where apartment is transferred to a divorce consolation payment, without being subject to the limitation of the period of residence.
Under the principle of no taxation without law, laws and regulations on the requirements for non-taxation shall be strictly interpreted as in the same manner as those on the requirements for taxation, and they shall not be extensively interpreted or analogically interpreted without reasonable grounds, and where apartment houses for which two years have passed in the way of paying consolation money have been transferred by means of divorce, such reasons shall not fall under the transfer of "one house for one household" under Article 6 (4) 1 of the former Enforcement Decree of the Income Tax Act (amended by Ordinance of the Prime Minister No. 505 of May 3, 1995), and it is apparent that all households move out to another Si/Eup/Myeon due to unavoidable reasons", medical treatment of diseases, situations of work or business, and in such a case, it shall not be expanded to be included in the above provisions, so such transfer of apartment houses does not constitute "one house for one household" subject to non-taxation.
Article 5 subparagraph 6 (i) of the former Income Tax Act (amended by Act No. 4803 of Dec. 22, 1994), Article 15 (1) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 14467 of Dec. 31, 1994), Article 6 (4) 1 of the former Enforcement Rule of the Income Tax Act (amended by Ordinance of the Prime Minister No. 505 of May 3, 1995)
Supreme Court en banc Decision 92Nu12988 Decided January 19, 1993 (Gong1993Sang, 763) Supreme Court Decision 92Nu18191 Decided September 14, 1993 (Gong1993Ha, 2824) Decided April 23, 1985
Plaintiff
Head of the Tax Office
Daegu High Court Decision 95Gu7742 delivered on July 4, 1996
The appeal is dismissed. The costs of appeal are assessed against the plaintiff.
We examine the grounds of appeal.
Article 15(1) proviso of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 14467 of Dec. 31, 1994) provides that "any inevitable reason prescribed by Ordinance of the Ministry of Finance and Economy is not limited to "one house for one household which is exempt from capital gains," and it is not permitted to expand, interpret, or analogically interpret without any justifiable reason (see, e.g., Supreme Court Decision 95Nu92, Nov. 7, 1995; Supreme Court Decision 92Nu18603, Feb. 22, 1994); and Article 15(1) proviso of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 14467 of Dec. 31, 1994; Supreme Court Decision 195Nu1545, Nov. 3, 200).
According to the records, the plaintiff can be found to have transferred the apartment house of this case to the above non-party in a way to pay consolation money by being divorced with the non-party who is his wife, and the living period of which remains two years. The above reasons are clear that the above reasons do not correspond to "the case where all the households move out to another Si/Eup/Myeon due to the unavoidable reasons" in Article 6 (4) 1 of the former Enforcement Decree of the Income Tax Act, and the above cases cannot be expanded to be included in the above provisions. Thus, the transfer of the apartment of this case does not constitute "one house for one household" subject to non-taxation.
In the same purport, the court below is just in holding that the transfer of apartment of this case does not correspond to the transfer of "one house for one household" where the transfer income tax is not imposed, and thus, the defendant's taxation of this case is legitimate. In so doing, the court below did not err by misapprehending the legal principles, such as the theory of lawsuit. There is no reason to argue.
Therefore, the appeal is dismissed and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Lee Yong-hun (Presiding Justice)