In the case of transferring the whole of a newly-built multi-household house at a single sales unit, the scope to which the non-taxation provision of one house for one household under Article 5 subparagraph 6 (i) of the former Income Tax Act applies and its legal basis

Where each household uses all or part of the walls, corridorss, stairs, and other facilities of the previous house and the building site as a multi-family house, which is newly constructed on that building site, forms an independent residential structure in which each household can carry on an independent residential life respectively within one building, and in substance, the apartment house is not sold by each household, even though it falls under the apartment house, and the entire house is transferred by one sale unit, even though there is no special provision such as Article 15(15) of the Enforcement Decree of the Income Tax Act amended by Presidential Decree No. 14860 of December 30, 1995, even if there is no special provision such as Article 15(15) of the Enforcement Decree of the Income Tax Act (wholly amended by Act No. 4803 of Dec. 22, 1994), Article 5 subparag. 6(i) of the former Enforcement Decree of the Income Tax Act (wholly amended by Act No. 4803 of Dec. 14, 1994) does not directly treat the apartment house as non-taxation under Article 15(5).

Article 5 subparagraph 6 (i) (see current Article 89 subparagraph 3) of the former Income Tax Act (amended by Act No. 4803 of Dec. 22, 1994), Article 15 (3) (see current Article 154 (3)) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 14467 of Dec. 31, 1994), Article 6-2 of the former Enforcement Rule of the Income Tax Act (amended by Ordinance of the Prime Minister of May 3, 1995)

Supreme Court en banc Decision 90Nu6385 Decided December 26, 1990 (Gong1991, 668), Supreme Court Decision 92Nu15994 Decided August 24, 1993 (Gong1993Ha, 2656), Supreme Court Decision 93Nu20764 Decided April 29, 1994 (Gong194, 1725) (Gong17Nu21859 Decided May 24, 1997)

Plaintiff (Attorney Hong-chul et al., Counsel for the plaintiff-appellant)

The director of the tax office.

Seoul High Court Decision 96Gu39174 delivered on June 17, 1997

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

We examine the grounds of appeal.

As to the fourth ground for appeal

The former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 15860, Dec. 30, 1995; Presidential Decree No. 1958; Presidential Decree No. 1965; Presidential Decree No. 1995; Presidential Decree No. 1965; Presidential Decree No. 1965; Presidential Decree No. 19655; 2. 3. 4. 9. 9. 9. 1. 4. 9. 1. 1. 4. 1. 1996) provides that the apartment house which had been newly built on its site and newly built on its site constitutes a structure in which each household can carry on an independent residential life within one building, and its substance does not sell the apartment house to each household, but is entirely exempt from taxation. 5. 1. 4. 5. 1. 4. 1. 1994

According to the court below's duly admitted evidence, the plaintiff acquired a lot of 165 square meters on November 9, 1978 and a lot of 90.45 square meters on the ground of Guro-gu Seoul ( Address 1 omitted), Guro-gu, and sold the above house on August 13, 1991, and on November 29 of the same year, 1, 268.62 square meters for multi-household house on the above site (one story 89.54 square meters for two stories, two stories, 89.54 square meters for one household, and 29.04 square meters for three households, and 29.04 square meters for two households, which are underground rooms and five households for one story, which are located in the second floor and are not subject to the application of the above provision on multi-family house, and there is no error in the misapprehension of legal principles as to the area of the new house or the remaining area of the house, which is the object of the registration of ownership transfer in accordance with the Enforcement Decree of the new Housing Act.

The First Ground for Appeal

The theory of lawsuit was concluded before the establishment of Article 6-2 of the Enforcement Rule, and at that time, the plaintiff was an act of disposal with the trust that it does not constitute an act of generating capital gains tax. Thus, the disposition of this case is an illegal disposition which is conducted against the taxpayer's trust in the existence of tax liability, its contents and scope. As seen earlier, the disposition of this case is not based on Article 6-2 of the Enforcement Rule, and thus, the theory of lawsuit based on this premise cannot be accepted without further determination, and it cannot be a legitimate ground for appeal as a new assertion that was not submitted until the original trial. This is without merit.

The Second Ground of Appeal

In its reasoning, the judgment of the court below provides that when a multi-family house is transferred to one household as a result of the amendment of the former Enforcement Decree on December 30, 1995, Article 15 (15) of the former Enforcement Decree provides that the whole shall be exempted from taxation for one house for one household, while Article 8 (2) of the Addenda provides that the amended Enforcement Decree shall apply from the determination of capital gains after the enforcement of the above amended Enforcement Decree. However, in the case of a tax disposition, it is merely an effect of cancelling part of the original disposition, and it does not have an independent taxation separate from the original disposition. Thus, the defendant's provision of the above amended Enforcement Decree shall be applied to the instant tax disposition under Article 8 (2) of the Addenda, on the premise that the new tax amount was determined by the revised Enforcement Decree on February 29, 1996. The judgment below is just and there is no error in the misapprehension of Article 15 (15) of the amended Enforcement Decree of the above Act and Article 8 (2) of the Addenda of the above Enforcement Decree.

As to the third ground for appeal

In addition, the court below rejected the plaintiff's assertion that the disposition of this case was made at the time of the second week prior to the enforcement of the above Enforcement Decree as amended on December 30, 1995. However, although the transfer date of the multi-family house of this case was on May 30, 1994, the plaintiff did not make a preliminary return of transfer marginal profits and the final return of tax base within the prescribed period, and thus the defendant did not make the disposition of this case. Thus, the court below rejected the plaintiff's assertion that the decision of the court below is legitimate, and there is no error in the law of not taking the disposition of this case until the enforcement date of the revised Enforcement Decree, and there is no error in the misapprehension of the legal principles as to Article 15 of the Framework Act on National Taxes, such as the theory of lawsuit. There

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)