Whether capital gains from a house in which one household has resided for at least six months without transferring resident registration is non-taxable income (affirmative)

Article 15(1) and (7) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 9229, Dec. 30, 1978) provides that the number of months of residence shall be calculated based on the number of months from the date of transfer of the resident registration card to the date of transfer, but this is for the convenience of proof and for the recognition of the fact of residence only by the method of the fact of residence. Thus, even if the owner of the house is not registered on the resident registration card, if he owns one house in Korea and actually resides together with his family for not less than 6 months, it shall be deemed as one house for one household under the Income Tax Act and subordinate statutes. Accordingly, the income accrued from the transfer of the house in this case shall be

Article 5 subparagraph 6 (i) of the Income Tax Act, Article 15 (1) and Article 15 (7) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 9229, Dec. 30, 1978)

Supreme Court Decision 81Nu284 delivered on June 22, 1982, 82Nu218 delivered on July 12, 1983

Plaintiff

Head of Nam Busan District Tax Office

Daegu High Court Decision 83Gu88 delivered on February 9, 1984

The appeal is dismissed.

The costs of appeal shall be borne by the defendant.

The defendant's grounds of appeal are examined.

Article 15(7) and (1) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 9229, Dec. 30, 1978) provides that the number of months of residence shall be calculated by the number of months from the date of transfer to the date of transfer under the resident registration card, but this is for the purpose of proof and for the purpose of recognizing the fact of residence only by the method of transfer (see, e.g., Supreme Court Decisions 81Nu284, Jun. 22, 1982; 82Nu218, Jul. 12, 1983). According to the facts duly established by the court below, the plaintiff continued to move into the Busan-gu (No. 1 omitted) and (No. 2 omitted) residential house and the non-party's residential house, which had been occupied by the non-party 1, 1978, had been purchased with the non-party 2, 300 square meters 50 square meters and 41, 2541, Ga, 2545.

Therefore, even if the Plaintiff, who is the owner of the instant house, was not registered on the resident registration card as a resident of the said house, owns one house in Korea and actually resided with his family for not less than six months, it shall be deemed as one house for one household under the Income Tax Act and subordinate statutes. Therefore, the income accrued from the transfer of the instant house shall be deemed as falling under the non-taxable income under Article 5 subparagraph 6 (i) of the Income Tax Act and Article 15 (1) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 9229, Dec. 30, 1978) and Article 15 (3)

In the above purport, the judgment of the court below that held that the disposition of this case was unlawful on the income accrued from the transfer of the instant house by deeming the Plaintiff’s instant house does not correspond to the so-called one house for one household, is just and acceptable, and there is no violation of the law of misunderstanding the legal principles on one house for one household.

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

Justices Kim Young-ju (Presiding Justice)