In the case of one house for one household under subparagraph 6 (i) of Article 5 of the Income Tax Act, Article 15 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 13194, Dec. 31, 1990), the legislative intent of non-taxation of capital gains tax, and in the case where one household owns one house on a certain site and resides in it, and the house is too worn out and reconstructed, whether the period of residence of new and old house can be added to the calculation of the period of residence (affirmative)

Article 5 subparagraph 6 (i) (i) of the Income Tax Act, Article 15 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 13194, Dec. 31, 1990); the purpose of legislation that is exempt from capital gains tax is not to temporarily move to a resident of one household who temporarily resides in the same place for the purpose of earning capital gains tax or speculation, but to transfer his house to another place for a considerable period of time, and to transfer the house to the other place is to guarantee under tax law. Therefore, in a case where one household owns one house on a certain site and resides there for a considerable period of time, the house is too worn out, and thus, if it is reconstructed at that place, and the new house is reconstructed, the period of residence in the new and old house should be calculated by adding it to the period of residence in calculating the period of residence as prescribed in the above Acts and subordinate statutes, and it is not based only

Article 5 subparagraph 6 (i) of the Income Tax Act, Article 15 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 13194 of Dec. 31, 1990)

Supreme Court Decision 92Nu1896 delivered on August 14, 1992

Plaintiff

Head of the Tax Office;

Seoul High Court Decision 91Gu16602 delivered on March 12, 1992

The judgment below is reversed and the case is remanded to Seoul High Court.

We examine the grounds of appeal.

According to the reasoning of the judgment below, the court below determined that the transfer of the house in this case, including two lots of land in this case, was a non-taxation period of the plaintiff's new house under Article 19 of the Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 12767, Aug. 1, 1989; Presidential Decree No. 12767, Dec. 13, 1989; Presidential Decree No. 1993, Sep. 14, 1989; Presidential Decree No. 1940, Sep. 15, 1989; Presidential Decree No. 19457, Sep. 2, 1989; Presidential Decree No. 1870, Sep. 14, 1989; Presidential Decree No. 18173, Feb. 19, 200).

However, Article 5 subparagraph 6 (i) of the Income Tax Act and Article 15 of the Enforcement Decree of the same Act, the legislative intent of non-taxation on capital gains tax for one house for one household under Article 5 (1) 6 (i) of the same Act, does not require a resident of one household to obtain capital gains tax or temporarily reside for speculation, and to transfer his house to another place for a considerable period of time and to move it to the same place. Therefore, as determined by the court below, in the event that one household possesses one house on a certain site and has resided there for a considerable period of time, the house is too old, so long as the household has resided there is a considerable period of time, it should be calculated by adding up the period of his residence to the period of new and old house in calculating the period of residence as prescribed by the above Act and subordinate statutes, and it shall not be based only on

Therefore, since it is apparent that the building site and its ground among the instant housing units are more than three years when adding up the residential period of the new and old house, this part constitutes the requirement of one house for one household, and thus, capital gains tax, etc. on the transfer of the portion should not be imposed. Nevertheless, the court below erred by misapprehending the legal principles under Article 5 subparagraph 6 (i) of the Income Tax Act and Article 15 of the Enforcement Decree of the same Act, thereby affecting the conclusion of the judgment.

The argument pointing this out is with merit.

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

Justices Kim Yong-sung (Presiding Justice)