Whether the calculation of the period of residence and possession of reconstruction house is lawful

In the case of one house for one household, in calculating the residence period and retention period, the provisions summing up the former house residence period shall apply to the reconstruction house from January 1, 1991, but may not apply to the case of this case transferred on October 31, 1989.

The contents of the decision shall be the same as attached.

1. The plaintiff's claim is dismissed. 2. The costs of lawsuit are assessed against the plaintiff.

Comprehensively taking account of the whole purport of pleadings as to Gap evidence Nos. 1 (Certified Copy of Resident Registration), Gap evidence Nos. 2, 6, 7 (Certified Copy of Resident Registration), Gap evidence Nos. 5 (Building Management Book), Eul evidence Nos. 8 (Land Register), Eul evidence Nos. 1-1 and 2 (Statement of Decision) without dispute over each establishment, the plaintiff cannot be deemed to have acquired the previous house of this case from May 20, 1978 to 120 square meters in Seoul, Yeongdeungpo-gu, 4239 to 120 square meters, 74.58 square meters in 74.58 square meters in the second floor, 74.58 square meters in the underground room, 74.58 square meters (from then to August 24, 198, the defendant cannot be deemed to have acquired the previous house of this case and transferred the house of this case to the non-party 1, 197, and the transfer income tax of this case No. 971.

As to the assertion that the disposition of this case is lawful, the plaintiff first, in light of the purport of legislation that is exempt from capital gains tax on the transfer of one house for one household, and the purpose of legislation should protect the stability of the residential life. In light of the purport of legislation that is exempt from capital gains tax on the transfer of one house for three (3) years or more of the first household, which is exempt from capital gains tax, the housing requirement of the new house should be determined by aggregating the residential period of the previous house. However, although the plaintiff resided in one (1) year in the previous house of this case, but the residential period of the previous house of this case was three (3) years or more, the housing portion during the transfer of the building of this case constitutes the transfer of one house for one (1) household which is exempt from capital gains tax, so the disposition of this case is unlawful within the scope of the transfer of the previous house of this case, and the value of the previous house of this case should be deducted at the expense of the improvement of the previous house of this case within the limit of 1).

Therefore, we first examine the plaintiff's argument, first, pursuant to Article 5 subparagraph 6 (i) of the Income Tax Act, one house for one household as prescribed by the Presidential Decree and one house within a certain area of land attached thereto shall be exempted from income tax. According to Article 15 (1) of the Enforcement Decree of the same Act, one house for one household which is exempt from income tax shall be one house for three years or more, and since the resident and his spouse shall own one house within the same address or same place of residence, the provisions of the former Enforcement Decree of the Income Tax Act concerning the transfer of the house shall not apply to the transfer of the previous house for nine years or more if the resident prove that he is one house for one household under the conditions as prescribed by the Ordinance of the Ministry of Finance and Economy, and the provisions of the former Enforcement Decree of the Income Tax Act concerning the transfer of the house shall not apply to the transfer of the previous house for nine years or more, and if the house is reconstructed due to the destruction or loss of the house due to the relocation of the previous house, it shall not be applied to the transfer of the previous house for nine years or more.

Next, the plaintiff's second place of residence is defined as non-taxation for transfer income tax without being subject to the restriction of residence period if there is an inevitable reason prescribed by the Ordinance of the Ministry of Finance and Economy. According to Article 6 (4) of the Enforcement Rule of the Income Tax Act, the case where there is an inevitable reason prescribed by the Ordinance of the Ministry of Finance and Economy in Article 15 (1) 3 of the Decree refers to the case where the plaintiff's relocation of the previous house does not allow the plaintiff to reside at his address or residence for 3 years or more due to the reason falling under any of the following subparagraphs. According to subparagraph 1, there is a case where the whole members of the household move to another Si/Eup/Myeon due to medical treatment, work or business circumstances. Meanwhile, according to the above evidence No. 1, and the above certificate No. 4 (business registration certificate) without dispute, the plaintiff's relocation of the previous house of this case cannot be acknowledged as non-taxation for transfer of the plaintiff's house of this case to 30 years or more.

Finally, according to Article 45 (1) 2 of the Income Tax Act, in calculating gains on transfer, the facility cost and improvement cost of the plaintiff's third assertion shall be deducted from the transfer value. According to Article 94 (2) of the Enforcement Decree of the same Act, the above facility cost and improvement cost of the building are the expenses paid for the alteration of the use of transferred assets (paragraph 1), the expenses paid for the improvement of transferred assets (paragraph 2), the expenses paid for the improvement of the use convenience of transferred assets (subparagraph 3), and the expenses corresponding to subparagraphs 1 through 3, which are determined by the Ordinance of the Ministry of Finance and Economy (subparagraph 4). According to Article 47 (1) of the Enforcement Rule of the same Act, since the project implemented under the Act such as the River Act, etc. provides that the value of the building of the building of the previous case shall not be considered as the cost of improvement of the building of the building of the previous case, the cost of improvement of the building of the building of the new building of the new building of the new building of the new building of the new building of the new building of the new building of the new building of the new building.

Therefore, the plaintiff's claim of this case seeking the revocation on the ground that the disposition of this case by the defendant is unlawful is dismissed without merit, and the lawsuit costs are assessed against the plaintiff who has lost. It is so decided as per Disposition.