(a) The case affirming the court below's measure that the payment of half of profits from the transfer of the above land and building to the person who assisted in the purchase of the building's certificate of completion inspection and the land pursuant to the agreement cannot be deemed necessary for such transfer;

(b) Requirements of “ownership for not less than one year” under Article 15(1) of the former Enforcement Decree of the Income Tax Act (amended by the Presidential Decree No. 12509 of Aug. 25, 1988) with regard to “one household owns one house and resides therein for not less than one year”

(a) The case affirming the court below's measure that payment of half of the profit from the transfer of the above land and building to the person who helps purchase the above land pursuant to an agreement between the administrative litigation on the delivery of certificate of completion inspection certificate and the person who assisted purchase from the time of land cannot be deemed as necessary for such transfer

B. The purport of Article 5 subparagraph 6 (i) of the former Income Tax Act (amended by Act No. 4019 of Dec. 26, 198), Article 15 (1) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 12509 of Aug. 25, 1988), which provides that “one house for one household shall be owned by one household and shall continue to reside for one year or more” means that “one household shall own one house for one year or more, and shall continue to reside for one year or more,” and the purport of Article 5 (1) of the former Enforcement Decree of the Income Tax Act, which provides that “if a house is owned for one year or more, it shall not be deemed that capital gains tax shall not be imposed on the land appurtenant thereto even if it is not owned for one year or more.

A. Article 45 of the Income Tax Act, Article 5 subparagraph 6 (i) of the former Income Tax Act (amended by Act No. 4019 of Dec. 26, 198), Article 15 (1) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 12509 of Aug. 25, 1988)

Plaintiff

Head of Seocho Tax Office

Seoul High Court Decision 90Gu3241 delivered on May 14, 1991

All appeals are dismissed.

The costs of appeal shall be assessed against each party.

We examine the Plaintiff’s ground of appeal.

On the first and second grounds for appeal

According to the reasoning of the judgment below, the court below held that the plaintiff transferred the building and the land of this case between the non-party 1 (the non-party) who was assisted in purchasing the land of this case and the administrative litigation as to the certificate of completion inspection and delivery of the building of this case and the non-party 1 (the non-party), and paid 54,00,000 won in accordance with the agreement after deducting the acquisition cost and other expenses of the land of this case, and it is only a disposal of profits arising from the transfer of the land of this case and the building of this case, and it cannot be viewed as necessary expenses under Article 45 of the Income Tax Act. In light of the records, the above fact-finding or decision of the court below is acceptable, and there is no error of law by misunderstanding the rules of evidence, or by misunderstanding the legal principles as to the reasoning or necessary expenses, and there is no evidence No. 5 (judgment).

The lower court did not recognize that the Plaintiff paid the said money to the Nonparty as the remuneration for the fostering of the building of this case, the non-party’s land supply, and the litigation performance thereof, and recognized as the distribution of profits pursuant to the agreement with the Plaintiff and the non-party. Since the Plaintiff and the non-party 1 share the difference arising from the disposal in the five (Agreement) evidence No. 7-5 (Agreement), the lower court’s above fact-finding or determination is justifiable, and it cannot be said that the lower court’s determination violates the principle of substantial taxation.

However, the question may be raised as to whether the Plaintiff’s distribution of 54,00,000 won to the Nonparty without deducting the transfer income tax from the Nonparty is appropriate. However, this may affect the outcome of the instant case, and the precedent of the theory of lawsuit is not appropriate in this case. Therefore, there is no reason to discuss the issue.

On the third ground for appeal

Article 5 subparagraph 6 (i) of the Income Tax Act (amended by Act No. 4019, Dec. 26, 1988; hereinafter “Income Tax Act”) provides that “one house for one household as prescribed by the Presidential Decree and the land appurtenant thereto, which does not exceed 10 times the area on which the building is constructed, shall not be subject to income tax.” Article 15 (1) of the Enforcement Decree of the Income Tax Act (amended by the Presidential Decree No. 12509, Aug. 25, 1988; hereinafter “the Enforcement Decree of the Income Tax Act”) provides that “one house for one household” shall be that a resident and his spouse shall own one house in the Republic of Korea with his family members living together with the same address or same place of residence, and shall not be subject to capital gains tax for at least one year if one household continues to own the house and the land appurtenant thereto for at least one year.” Here, it shall not be subject to taxation for at least one year.

Therefore, the court below's decision that even if the plaintiff acquired the land in this case and transferred it within one year, even if the building in this case continues to own it for at least one year and thus becomes non-taxable income of capital gains tax, the income from the transfer of land shall not be deemed non-taxable income, and there is no error of law by misunderstanding the legal principles of "one house for one household".

The Supreme Court Decision (Law No. 87Nu526 delivered on October 13, 1987) of the theory of the lawsuit is not appropriate in this case. There is no reason for discussion.

On the fourth ground

According to the facts established by the court below, the plaintiff sold the land of this case to the non-party 2 et al. on October 26, 1987 after concluding a contract to purchase the land of this case from the Seoul Special Metropolitan City and paying the down payment only, and paid the balance of the land of this case to the non-party 2 et al. on December 23 of the same year and transferred it within one year, and it was confirmed that the actual transaction price at the time of acquisition and transfer was confirmed. Thus, the judgment of the court below that the transfer margin should be calculated on the basis of the actual transaction price pursuant to Article 170 (4) 1 and 2 of the Enforcement Decree of the Income Tax Act and Article 72 (3) 5 of the Regulations on the Management of Property Tax Investigation (National Tax Service Directive No. 980) of the Enforcement Decree of the same Act is just,

On the fifth ground

In calculating the transfer value of land of this case according to the standard market price pursuant to Article 170(2) of the Enforcement Decree of the Income Tax Act, the court below is just in holding that the value assessed by the multiple method should be based on Article 60 of the Income Tax Act and Article 115(1) of the Enforcement Decree of the Income Tax Act, and there

We examine the Defendant’s grounds of appeal.

In light of the records, the court below's finding that the transfer date of the land and the building in this case was December 23, 1987 is also acceptable, and since the evidence No. 8-14 (Receipt) was made after the remainder payment, it does not hinder the above recognition.

The judgment of the court below shall not contain any error in the incomplete hearing or the omission of judgment, and it shall be without merit.

Therefore, all appeals are dismissed, and the costs of appeal are assessed against each losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Jae-chul (Presiding Justice)