Whether a person who has come to meet the requirements for one house for one household under the Income Tax Act by acquiring an apartment house for a fixed period of time succeeds to another house, transfers the inherited house, and at the same time transfers the previous apartment within the fixed period after acquiring a new house for the purpose of moving the residence.

In case where a person who has come to meet the requirements for one house for one household under the Income Tax Act by acquiring an apartment house and reside in it for a prescribed period, succeeds another house, transfers the inherited house, and at the same time transfers the previous apartment house within the prescribed period recognized as one house for one household, after acquiring a new house for the purpose of moving the residence, the transfer of the apartment house is the transfer of one house for one household under subparagraph 6 (i) of Article 5 of the Income Tax Act and is not subject to the transfer income tax.

Article 5 subparagraph 6 (i) of the former Income Tax Act (amended by Act No. 4803 of Dec. 22, 1994), Article 15 (1) and (6) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 12509 of Aug. 25, 1988), Article 6 (1) of the former Enforcement Decree of the Income Tax Act (amended by Ordinance of the Ministry of Finance and Economy of Aug. 25, 1988)

Supreme Court en banc Decision 92Nu12988 delivered on January 19, 1993 (Gong1993Sang, 763) Decided March 10, 1992

Kim Jong-sung (Attorney Hwang Sung-sung, Counsel for the defendant-appellant)

The Director of the Pacific District Office

1. The defendant's disposition of imposition of capital gains tax of KRW 9,172,940 against the plaintiff as of September 11, 1993 and KRW 1,834,580 against the plaintiff as of September 11, 1993 is revoked.

2. The costs of lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. Details of the instant taxation disposition

Comprehensively taking account of the whole purport of the pleadings in Gap evidence 1 through 5, Nos. 11, 12, and Eul evidence Nos. 1 through 4, the plaintiff acquired the Seocho-gu Seoul Metropolitan Government Seocho-dong 1310 and No. 1204.01m2 (hereinafter "the apartment of this case") on March 8, 1985 (the date of sale, which is the cause of registration, is the 6th day of the same month), and resided from March 13, 1985 to Oct. 30, 1986, and transferred it to non-party Nos. 1 to non-party No. 3 of Songpa-gu 1989. The defendant transferred the above apartment house No. 203 (hereinafter "the inheritance house of this case") on Feb. 10, 1989 and transferred it to non-party No. 1, 196, the defendant transferred the house of this case to non-party No. 1, 1987. 196.

2. Whether the taxation disposition is legitimate

A. In regard to the Defendant’s assertion that the instant taxation disposition is lawful on the grounds of the above disposition grounds and relevant statutes, the Plaintiff asserted, and the Plaintiff acquired the instant new house for the purpose of moving the residence after transferring the instant inherited house, and transferred the instant apartment within the period stipulated by the former Enforcement Decree of the Income Tax Act and the Enforcement Rule of the same Act, which was amended on August 25, 1988, within the period stipulated for the transitional provision on the first house for one household under the former Enforcement Decree of the Income Tax Act and the Enforcement Rule of the same Act, the instant apartment transfer should be exempted from taxation on the ground that the instant apartment transfer constitutes the requirement for transferring the house for one household under Article

B. Relevant statutes

According to Article 1 (1) through (3) of the Addenda to the Enforcement Decree of the Income Tax Act (the Presidential Decree No. 12509 of August 25, 198), the Presidential Decree amended on the above date shall enter into force from the date of its promulgation, and the Decree shall apply to the first transfer after its enforcement: Provided, That where a household which has one house for one household under the provisions of the main sentence of Article 15 (1) and subparagraph 2 of the same Article at the time of its enforcement transfers the house and completes the registration of ownership transfer within 6 months from the enforcement date of the former Enforcement Decree of the Housing Construction Promotion Act, the transfer shall be deemed to be a transfer under the provisions of subparagraph 6 (i) of Article 5 of the Act. Article 15 (1) through (3) of the Addenda to the Enforcement Decree of the Income Tax Act (the Ordinance of the Ministry of Finance and Economy No. 1760 of August 25, 198) shall also enter into force from the date of its entry into force, and where the house is not acquired within 2 years from the previous Enforcement date of the Housing Construction Promotion Act (the last 16 years).

Therefore, although the transfer date of the apartment of this case is after the amendment of the above Enforcement Decree and the Enforcement Rule, the transfer date of the apartment of this case shall be determined according to the previous laws and regulations prior to the amendment of Article 5 subparagraph 6 (i) of the Act, the issue of whether the transfer is a transfer under Article 5 subparagraph 6 (i) of the Act shall be determined according to the above transitional provisions.

Article 5 subparagraph 6 (i) of the Income Tax Act provides that no capital gains tax shall be imposed on income accruing from the transfer of one house for one household as prescribed by the Presidential Decree (this part before and after the amendment by Act No. 4019 of December 26, 198 or its amendment; hereinafter the same shall apply) and the main sentence of Article 15 (1) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 12509 of August 25, 198) provide that "one house for one household" shall be included in subparagraph 6 (i) of Article 5 of the Act, if the resident and his spouse own one house in the Republic of Korea and their family members living together with the same address or place of residence, and if the person falling under the provisions of paragraph (1) first acquires the house by inheritance, such house shall be deemed to have been transferred within 7 years before the date of transfer registration under the former Enforcement Decree of the Income Tax Act, and it shall be deemed that the former house should be transferred within 17 years after its acquisition by transfer.

(c) recognised facts

In full view of the evidence as seen earlier and evidence Nos. 8, 9, and 10 of evidence Nos. 1 to 4 of this case, and the witness Han-gu and Tae Tae-jin's testimony, the plaintiff acquired the apartment of this case around Mar. 8, 1985, and sold it to Non-party No. 1 on Jan. 5, 1989 and transferred it by completing the registration of transfer on Feb. 10 of the same year to Non-party No. 10 on Oct. 30 of the same year, and the plaintiff's family purchased the house of this case to Non-party No. 1 to Non-party No. 5 of this case on Oct. 30, 1986 and then purchased the house of this case to Non-party No. 1 to Non-party No. 3 of this case on Oct. 10, 1987, and then the plaintiff purchased the house of this case to Non-party No. 5 of this case on Oct. 10, 1987.

(d) Markets:

In light of the above facts in light of the relevant laws and regulations, the plaintiff shall be deemed to have transferred the inherited house of this case (the plaintiff shall be deemed to have transferred the house first to one household if the person meeting the requirements for one house for one household under the provisions of Paragraph (1) of Article 15 of the above Enforcement Decree acquires the house by inheritance. Since the apartment house of this case at the time of inheritance meets the requirements for one house for one household, the above inheritance house shall be deemed to have been transferred one house for one household) at the same time as the new house of this case for the purpose of moving the house (the defendant shall be deemed to have acquired another house before moving the house for the purpose of moving the house for the purpose of moving the previous house) (the defendant shall be deemed to have acquired the house for the purpose of transferring the house for 9 years before moving the house for the purpose of transferring the house for 19 years before the transfer of the house, and it shall not be deemed to have been necessary to newly acquire the house for the purpose of transferring the house for 19 years before the transfer of the previous apartment house, and thus it shall not be construed to have been interpreted to have been necessary.

3. Conclusion

Therefore, since the defendant's taxation disposition of this case is illegal, the plaintiff's claim of this case seeking its revocation is justified, and the lawsuit cost is assessed against the losing defendant. It is so decided as per Disposition.

Judge Shin Jae-sung (Presiding Judge)