A. The purport of Article 6 (1) of the Enforcement Rule of the Income Tax Act

(b) A person who acquires another house for the purpose of moving to another house and temporarily becomes two houses for one household shall be exempt from taxation pursuant to Article 6(1) of the Rules of Paragraph (a) above, and residence in the previous house;

A. Article 6(1) of the Enforcement Rule of the Income Tax Act provides that even if two houses are temporarily owned by one household, the purpose of acquiring another house is to not impose income tax on the income accruing from the transfer if the purpose of acquiring another house is to move to the dwelling and if the previous house is transferred within a certain period from the date of acquiring another house.

B. (ⅰ) In fact, a person who acquired another house for the purpose of moving a house has actually moved the house to the other house within the period stipulated in Article 6(1) of the Rules of Paragraph (1) above, and (ii) has transferred the previous house within the same period from the date of acquiring the other house, and (iii) if the previous house at the time of acquiring another house has satisfied the non-taxation requirements for the first house for one household, the non-taxation requirement for the income accruing from the transfer of the previous house alone shall not be deemed to have been satisfied. In addition to such non-taxation requirements, the income tax shall not be imposed only on the transfer of the previous house for the purpose of moving the house or only on the transfer of the newly acquired house to the other

(b) Article 5 subparagraph 6 (i) of the Enforcement Rule of the Income Tax Act, Article 15 (1) 1 and 2 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 12767 of Aug. 1, 1989)

A. Supreme Court Decision 87Nu971 delivered on June 28, 1988 (Gong1988,120)

Plaintiff

the director of the tax office

Seoul High Court Decision 91Gu2931 delivered on August 22, 1991

The judgment of the court below is reversed.

The case is remanded to Seoul High Court.

The plaintiff's grounds of appeal are examined.

1. The reasoning of the judgment below.

Even if the Plaintiff acquired the above house on April 27, 1973, 152.7 square meters and 12.9 square meters and 12.9 square meters of the above ground, from March 27, 1975, and from February 23, 1978, he resided together with his family to the above house, and on April 30, 1984, the Plaintiff did not own the above house on the above ground (hereinafter “the instant house”) and had a non-taxable house for the purpose of transferring the house to the Non-Party 1, the Plaintiff and his family did not own the above house under the Enforcement Decree of the Income Tax Act for the purpose of transferring the house to the non-party 1, which was not subject to the transfer of the house from the above 1,000, to the 1,000,000,000,000 from the date of the transfer of the house to the 1,000,000,000.

2. According to Article 5 subparagraph 6 (i) (i) of the Income Tax Act (hereinafter referred to as the “Act”), one house for one household as prescribed by the Presidential Decree and the income tax shall not be imposed on the income accruing from the transfer of one house within a certain area of land attached thereto. Under Article 15 (1) 1 and 2 (i) of the former Enforcement Decree of the Income Tax Act (amended by the Presidential Decree No. 12767 of Aug. 1, 1989, hereinafter referred to as the “Decree”), which applies to this case, the term “one house for one household” in Article 5 (6) 6 (i) of the Act means that the resident and his spouse own one house in Korea and live together with the family members living together with them at the same address or same place of residence for three years or longer, and where the resident establishes that the house is one house for one household within a period of five years or more under the conditions as prescribed by the Ordinance of the Ministry of Finance and Economy, the transfer of the house is prescribed in Article 16 (i) of the Act within the same Act.

In light of the above provisions of Article 6(1) of the Rules, the purpose of Article 6(1) of the Rules is to not impose income tax on the income accruing from the transfer of another house, even if two houses are temporarily owned by one household, if the purpose of acquiring another house exists and the previous house is transferred within a certain period from the date of acquiring another house (see Supreme Court Decision 87Nu971, Jun. 28, 1988). Thus, (i) a person who has acquired another house for the purpose of moving a house actually moves the other house within the period stipulated in Article 6(1) of the Rules, and (ii) a person who has acquired another house within the same period from the date of acquiring the former house, transferred the previous house within the same period, and (iii) if the former house satisfies the non-taxation requirements for the income accruing from the transfer of the previous house, it cannot be deemed that the said reason alone meets the non-taxation requirements for the income accruing from the transfer of the previous house, or that the previous house has been newly acquired and relocated to another house.

In this case, if the facts are as determined by the court below, it cannot be deemed that the plaintiff acquired the above ○ apartment for the purpose of moving the house, and as long as it is evident that the plaintiff had already moved the house into the apartment before the acquisition mold of the apartment and transferred the house of this case within one year from the acquisition date of the apartment, it shall not be deemed that the income tax is not imposed on the income accruing from the transfer of the house of this case, since the plaintiff did not have resided in the house of this case because the plaintiff was not subject to the restriction of the residential period under Article 15(1)1 of the Decree as the house newly built by the plaintiff at the time of acquiring the above ○ apartment, and the plaintiff was not subject to the restriction of the residential period under Article 15(1)1 of the Decree.

Nevertheless, in light of the fact that the plaintiff or his family did not have resided in the house of this case, the court below judged that the tax disposition of this case was legitimate on the ground that the plaintiff cannot be deemed to have acquired the above ○ apartment for the purpose of moving the house of this case. Thus, the court below did not err by misapprehending the legal principles on the non-taxation requirement of one house for one household, and it is obvious 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 Jae-ho (Presiding Justice)