Where one of two family members who have formed a separate household acquires a house by inheritance, and one person who has resided in another house has moved his/her house to a house inherited by inheritance, and then sells the previous house, whether capital gains tax is exempted (negative) as one house for one household (negative)

If a mother who has formed a separate household succeeds to a house through an agreement division, and a son who has resided in another house succeeds to a house with her mother and her mother who have resided in the previous house, and thereafter sells the previous house, she does not acquire a house by inheritance, and thus, she cannot be deemed as exempt from capital gains tax for the sale of the said house.

Article 5 subparagraph 6 (i) (see current Article 89 subparagraph 3) of the former Income Tax Act (amended by Act No. 4803, Dec. 22, 1994); Article 15 (6) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 14467, Dec. 31, 1994) (see current Article 155 (2))

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jong-soo et al., Counsel for plaintiff-appellant)

Plaintiff (Attorney Park Young-soo, Counsel for the plaintiff-appellant)

The Director of the Pacific District Office

Seoul High Court Decision 97Gu27994 delivered on March 19, 1998

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

The court below held that where a person who falls under one house for one household under Article 15 (6) of the former Enforcement Decree of the Income Tax Act (amended by the Presidential Decree No. 1467 of Dec. 31, 1994) acquires a house by inheritance, the house first transferred shall be deemed to be one house for one household. The plaintiff's mother and non-party 1 constitute a separate household with the plaintiff and the non-party 2 together with the husband. The non-party 2 died on February 5, 1989, upon consultation and division, succeeded to the house owned by non-party 2 in Songpa-gu Seoul Special Metropolitan City ○○○dong (number omitted). The plaintiff who owned the house in this case transferred the house to the above ○○dong on April 29, 1989, dealt with the house in this case and sold the house in this case on March 12, 1993. Thus, the plaintiff and non-party 1 did not acquire the house by inheritance, and therefore, it cannot be justified in the grounds of appeal.

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

Justices Lee Don-hee (Presiding Justice)