[1] If a person becomes two houses for one household temporarily, the requirements to be exempted from capital gains tax on the transfer of the previous house

[2] The purpose of Article 15 (1) 3 of the former Enforcement Decree of the Income Tax Act and Article 6 (4) 1 of the former Enforcement Rule of the Income Tax Act concerning transfer of one house for one household due to unavoidable reasons such as service

[1] If two houses are temporarily owned by one household, to be exempted from income tax on the transfer of the previous house (1) In order to be exempted from income tax on the transfer of the previous house, a person who acquired another house for the purpose of moving the previous house to the other house within the period stipulated in Article 6 (1) of the former Enforcement Decree of the Income Tax Act (amended by Ordinance of the Prime Minister No. 505 of May 3, 1995). (2) The previous house was transferred within the same period from the date of acquiring the other house, and (3) at the time of transferring the previous house, the previous house must meet the non-taxation requirements for one house

[2] Article 15 (1) 3 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 14467 of Dec. 31, 1994) and 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) should be viewed to the purport that the transferor of a house shall not inquire whether the transferor of the house had resided in the house and shall be deemed to fall under one house for one household and shall not be imposed income tax on the income accruing from the transfer of the house.

[1] Article 5 subparagraph 6 (i) of the former Income Tax Act (wholly amended by Act No. 4803, Dec. 22, 1994); Article 15 (1) of the former Enforcement Decree of the Income Tax Act (wholly amended by Presidential Decree No. 14467, Dec. 31, 1994); Article 6 (1) of the former Enforcement Decree of the Income Tax Act (wholly amended by Ordinance of the Prime Minister No. 505, May 3, 1995) / [2] Article 15 (1) 3 of the former Enforcement Decree of the Income Tax Act (wholly amended by Presidential Decree No. 1467, Dec. 31, 1994); Article 6 (4) 1 of the former Enforcement Rule of the Income Tax Act (wholly amended by Ordinance of the Prime Minister No. 505, May 3, 1995)

[1] Supreme Court Decision 94Nu7911 delivered on March 10, 1995 (Gong1995Sang, 164), Supreme Court Decision 94Nu15165 delivered on May 9, 1995 (Gong1995Sang, 2137), Supreme Court Decision 95Nu10723 delivered on November 21, 1995 (Gong1996Sang, 105) / [2] Supreme Court en banc Decision 92Nu12988 delivered on January 19, 193 (Gong193Sang, 763), Supreme Court Decision 92Nu16546 delivered on July 13, 1993 (Gong193Ha, 2318), Supreme Court Decision 94Nu15494 delivered on August 24, 1994 (Gong2549 delivered on August 24, 1994)

Plaintiff (Attorney Jeon-tae, Counsel for plaintiff-appellant)

head of Sung Dong Tax Office

Seoul High Court Decision 95Gu33841 delivered on June 12, 1996

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

As determined by the court below, if the date of liquidation of the price of the second house of this case was September 16, 1993 and the date of liquidation of the price of the second house of this case was October 13 of the same year, it was concluded after the plaintiff entered into a contract to sell the second house of this case, and even if the plaintiff purchased the second house of this case, the time of acquisition of the second house of this case was September 16, 1993, and the time of transfer of the second house of this case was October 13 of the same year. Thus, the plaintiff cannot be deemed as the owner of the second house of this case temporarily at the time of transfer of the house of this case.

In addition, if two houses are temporarily owned by one household, to be exempted from income tax on the income accrued from the transfer of the previous house (1) in order to be exempted from income tax, the person who acquired another house for the purpose of moving the previous house has actually moved the previous house to the other house within the period prescribed in Article 6 (1) of the former Enforcement Rule of the Income Tax Act (wholly amended by Ordinance of the Prime Minister No. 505 of May 3, 1995), and (2) the previous house has been transferred within the same period from the date of acquiring the other house, and (3) the previous house must meet the non-taxation requirements for the previous house at the time of transferring the previous house (refer to the position of the Supreme Court Decisions 94Nu15165 delivered on May 9, 195, 95Nu10723 delivered on November 21, 1995, etc.). Therefore, the court below is justified in the purport that the plaintiff cannot obtain non-taxation for the previous house as the previous house within the period prescribed in Article 6 (1) of the above Enforcement Rule.

However, the court below held that since the plaintiff did not reside in the house of this case, Article 5 subparagraph 6 (i) of the former Income Tax Act (wholly amended by Act No. 4803 of Dec. 22, 1994), Article 15 (1) 3 of the former Enforcement Decree of the Income Tax Act (wholly amended by Presidential Decree No. 14467 of Dec. 31, 1994), and Article 6 (4) 1 of the former Enforcement Decree of the Income Tax Act, the plaintiff's family members were unable to move the house of this case to another Si/Eup/Myeon for 3 years or more because they had been living in the house of this case and did not reside in the house of this case, the plaintiff could not be deemed to have been subject to non-taxation under the above Rule 15 (1) 3, and Article 6 (4) 1 of the above Enforcement Rule of the Income Tax Act, the court below's decision that the plaintiff's transfer of the house of this case was not affected by 198.

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)